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Cite as: [2005] CSOH 175, 2006 SCLR 550, [2005] ScotCS CSOH_175

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McKie & Ors v. MacRae & Anor [2005] ScotCS CSOH_175 (23 December 2005)

OUTER HOUSE, COURT OF SESSION

[2005] CSOH 175

A130/96

OPINION OF LORD GLENNIE

in the cause

MARTIN DAVID McKIE and OTHERS

Pursuers;

against

MAUREEN MacRAE and ANOTHER

Defenders:

________________

Pursuers: J.R. Campbell, QC; D. Parratt; Bishops

First Defender: A. Smart; Brodies

Second Defender: R. Dunlop; Balfour & Manson

23 December 2005

Introduction
[1] This case came before me on the Procedure Roll in May of this year. The hearing could not be concluded then and had to be adjourned until September. In addition to a number of points on relevancy, the case raises once again the question of whether the court has power to bring an end to proceedings where there has been excessive delay putting at risk the possibility of a fair trial of the issues in dispute between the parties.

[2] The action concerns a road traffic accident which occurred in 1986, nearly 20 years ago. A car driven by Robert MacRae swerved across the road and crashed into a lorry coming the other way. Mr MacRae and all three passengers in the car were killed. One of those passengers was Coral McKie. The pursuers are her children. They sue in respect of the alleged negligence of Mr MacRae. Since Mr MacRae died intestate with no assets in respect of which confirmation could be obtained, the first defender, his widow, is sued as his heir for decree cognitionis causa tantum. The car was owned by the second defender, and had been hired out to one of the other passengers in it at the time of the accident. The second defender is sued for negligence in respect of the condition of the car and its tyres.

[3] Both defenders have tabled a plea to the relevancy of the pursuers' averments. They also have two pleas-in-law raising the issue of the pursuer's delay in prosecuting this action. Those pleas, as formulated by the different defenders, differ in their precise wording, but are to the following effect: (a) that the pursuers having delayed unwarrantably in prosecuting the action, as a result of which there is a substantial risk that a fair trial will not be possible et separatim the defenders have been prejudiced in their ability to defend the same, the action should be dismissed in the exercise of the inherent jurisdiction of the court; and (b) that the continuation of the action being incompatible with the rights of the defenders in terms of Article 6(1) of the European Convention on Human Rights and Fundamental Freedom ("the Convention"), the defenders should be assoilzied, failing which the action should be dismissed.

[4] As counsel for the first defender remarked at the outset, it is unusual in 2005 to be dealing with a road traffic accident which occurred in 1986. A broad outline of what has happened between then and now is as follows. This is taken from a procedural chronology put before me during the hearing, which I understood not to be contentious.

[5] In January and February 1987, following the accident, a Fatal Accident Inquiry ("FAI"), at which the first defender was represented, was held before the Sheriff Principal at Stranraer. On 17 July 1989, the day before the expiry of the triennium, an action was raised at the instance of Alister McKie and Mary McNairn, respectively the husband and mother of Coral McKie, directed against the present defenders and also against Mrs Paul, the wife and executrix of David Paul, who had hired the vehicle from the present second defender and who was initially believed to have been driving. In that action, Alister McKie sued both as an individual and also as tutor and administrator in law of his children, the pursuers in the present action. It is not clear exactly what happened to that action. Defences were lodged for Mrs MacRae (the first defender in the present action). The action was sisted, apparently due to a dispute between the agents for the pursuers in that action, on the one hand, and the Dominion Insurance Company ("the insurers") and/or the Motor Insurers Bureau ("MIB") on the other, about whether the claim had been properly and timeously intimated. I am told that that action probably remains sisted but the court file cannot be found. I do not know why a new action was raised, rather than the sist being recalled but I was told that it might be to do with notification of proceedings to the insurers. Whatever the reason, it comes as no surprise that both defenders in the present action advance a plea of lis pendens albeit that, in view of the uncertainties to which I have referred, it was agreed that these pleas should at present be left over.

[6] The summons in the present action was signetted on 8 July 1996 and served some time thereafter. Until the instance was recently amended, the pursuers were Alister McKie, suing as guardian of Coral McKie's two youngest children and Karen McKie, her oldest child. Now the three children are all named as pursuers. It is not disputed that this action was raised timeously because of the nonage of the pursuers, the pursuers having been born in 1978, 1980 and 1983: see section 18(3) of the Prescription and Limitation (Scotland) Act 1973. However, on 6 August 1997 the action was sisted, on the application of the first defender, pending determination of her application for legal aid. That application was granted in about May 1998. Notwithstanding that, the action remained sisted for a further 5 years or so. During that period it appears that the then agents for the pursuers were again in discussions, or possibly in dispute, with the insurers and the MIB. The sist was only recalled on 7 August 2003, shortly after a change of solicitors for the pursuers. They too had to consider the question of the involvement of the insurers or of MIB. As I understand the position, a claim for professional negligence, in respect of the failure properly to intimate the summons to the insurers or to MIB, has been raised by the pursuers against her former solicitors, but this claim has been sisted pending the outcome of the present action. On the information given to me it appears that no criticism can attach to the pursuers' present solicitors in respect of the delay in this action.

[7] On 23 July 2003 the pursuer's present solicitors intimated their intention to seek recall of the sist. The second defender lodged defences the next day. The sist was recalled on 7 August and on that day the first defender lodged defences. The defences both contained the complaints about delay which are the subject of the present Procedure Roll hearing. The Closed Record was lodged on 16 July 2004 and the cause appointed to the Procedure Roll on the first and second defenders' preliminary pleas. I first heard argument on 26 and 27 May 2005. It became apparent that two days were insufficient to complete the hearing. I heard a further two days argument on 29 and 30 September 2005.

[8] Just before the matter came before me on the Procedure Roll, the pursuers amended the Record to include new averments of fault against Mr MacRae and against the second defender. As against Mr MacRae, there were new averments introducing issues concerning Mr MacRae's speed before the accident, the amount of alcohol that he and others had been drinking, and whether or not he ought to have been aware of the car being difficult to control on account of the state of its rear tyres. As against the second defender, there were introduced further averments focusing the case that the accident was caused by poor road-holding as a result of the rear tyres being defective or, at least, unevenly inflated. I shall return to consider these amendments later in this Opinion.

First defender's submissions

Inherent power
[9] For the first defender, Miss Smart submitted that the court has power to put a stop to proceedings in circumstances where excessive delay on the part of the pursuer puts at risk the possibility of a fair trial of the issues or otherwise causes serious prejudice to the defender. She accepted that no such power is set out in the Rules of Court, but they were not a codification of the powers of the court. There were many examples of practices and procedures having developed without reference to the Rules of Court. An example close to the instant case was the procedure by which the Motor Insurers Bureau can enter the process as party minuters, and the case then proceeds against them on that basis. She referred me to the case of Newman Shopfitters Ltd v M.J. Gleeson Group plc 2003 SLT (Sh.Ct.) 83 in which Sheriff Principal Macphail (as he then was) was in no doubt about the existence and nature of such an inherent jurisdiction, derived not from any statute or Rule of Court but from the very nature of the court itself. Newman was followed in Wilson t/a T W Contractors v Drake & Skull Scotland Ltd. 2005 SLT (Sh. Ct.) 35. Support for the existence of such a power was to be derived from Erskine I ii 8. The inherent jurisdiction had been described in Hall v Associated Newspapers Ltd 1979 J.C. 1 as "the indispensable power which is inherent in every court to do whatever is necessary to discharge the whole of its responsibilities". Miss Smart relied upon the remarks of Sir Jack Jacob in his article on practice and procedure in Halsbury's Laws of England Vol. 37 (4^th ed.) at paragraph 14:

"... the inherent jurisdiction of the court is a virile and viable doctrine, and has been defined as being the reserve or fund of powers, a residual source of powers, which the court may draw upon as necessary whenever it is just or equitable to do so, in particular to ensure the observance of the due process of law, to prevent vexation or oppression, to do justice between the parties and to secure a fair trial between them."

This passage was cited with approval in Newman, and by the Court of Appeal of Manitoba in Montreal Trust Co v Churchill Forrest Industries (Manitoba) Ltd (1971) 21 D.L.R. (3d) 75 at 81. Newman had been referred to by Lord Hope with apparent approval, or at least without disapproval, on this point in Her Majesty's Advocate v R 2003 SC (PC) 1 at para. [87]. Miss Smart properly drew my attention to the Opinion of Lord Johnson in Esso Petroleum Co Ltd v Hall Russell & Co Ltd (No.2) 1995 S.L.T. 127. In that case Lord Johnston held that the courts had no inherent power such as is contended for in the present case. He had, in effect, held that the Rules of Court were a complete code; only if it were shown that there was a gap in the rules due to error or oversight was there any scope for the Court to innovate by exercise of an inherent power. Miss Smart contended that this was wrong. She pointed out that Erskine and Hall had not been cited to Lord Johnston. Even if it were correct at the time of that decision, she submitted that Lord Johnston's reasoning had been overtaken by the incorporation into the law of Scotland of Article 6 of the Convention.

[10] Turning to the power for which he contended, Miss Smart referred me to the two leading English decisions which established that such an inherent power existed, Allen v Sir Alfred McAlpine & Sons Ltd [1968] 2 Q.B. 229 and Birkett v James [1978] A.C. 297. The principles upon which the jurisdiction was exercised were summarised by Lord Diplock in Birkett v James at p. 318. Miss Smart submitted that those principles could and should be applied to the exercise of the inherent jurisdiction in Scotland. She made detailed submissions on the various periods of delay in this case and the prejudice that would cause. She submitted that the proper course in the present case was for the court to grant absolvitor, which failing decree of dismissal.

Article 6 of the Convention
[11] The Convention has effect in the United Kingdom by virtue of the Human Rights Act 1998. Article 6 deals with the right to a fair trial. Para. 1 of Article 6 provides that:

"In the determination of his civil rights and obligations ... everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law ..."

Miss Smart drew my attention to paras. 4.6.45 to 4.6.52 of Human Rights Law and Practice, edited by Lord Lester of Herne Hill QC and David Pannick QC, and in particular to the following passage at para. 4.6.49:

"The state is not responsible for delay that is not attributable to the conduct of the applicant: only delays attributable to the state may justify a finding of failure to comply with the "reasonable time" requirement. The state is, however, responsible for delays by its administrative or judicial authorities. In a civil case, these might include the adjournment of proceedings pending the outcome of another case, delay in the conduct of the hearing by the court or in the presentation or production of evidence by the state, or delays by the court registry or other administrative authorities."

She submitted that sections 6 and 7 of the 1998 Act, read together, imposed a duty on the court in the context of any civil proceedings, not only those against the state. The court was a "public authority": see section 6(3) of the Act. Section 6(1) made it unlawful for a public authority to act incompatibly with a Convention right. By allowing the present case to continue, the court would be acting in breach of the first defender's Convention rights and, therefore, unlawfully. Except in limited cases, for example under the new personal damages rules (see Rule of Court 43), there was no judicial control over proceedings. The action had been sisted in 1997 and the court had done nothing to limit or control the period of sist. Section 7(1) allowed the first defender, as a victim of an unlawful act (or proposed unlawful act), to rely upon her Convention rights in these proceedings. In Newman the court had accepted this argument and had been prepared to read down the Ordinary Cause Rules to enable it to grant absolvitor in a case where the pursuer had been guilty of such delay as would prevent a fair trial.

Delay/ prejudice
[12] Miss Smart submitted that what constituted a reasonable time varied according to the circumstances of the individual case. Under reference to para. 4.6.48 in Lester and Pannick, she submitted that the action here raised no complex factual or legal issues. There had been excessive delay in bringing a straightforward road traffic claim to a hearing. The first defender had a statutory right to a hearing of the claim against her within a reasonable time. She submitted that the court should look at the time from when the action had begun; and assess the reasonableness of that time by reference to the whole period from the underlying event. She accepted that for time-bar purposes, the pursuers, because of their age, were entitled to bring the present action in 1996. However, they could have raised the action earlier and there was no reason for them not to have done so. There had been an unexplained and unreasonable delay in raising the action. There had been further delay since the action had been raised, particularly the period of nearly six years when the action was sisted. Miss Smart submitted that although it had been on the application of the first defender that the action was sisted in July 1997, the reason for that sist had disappeared by 4 May 1998 when she was granted legal aid. The pursuers' then solicitors allowed the sist to continue for a further five years or more whilst they continued to explore the position with the MIB and the Dominion Insurance Company. It would have been unrealistic and artificial for the first defender to move to recall the sist during that period. The first defender did not acquiesce in the delay; she simply waited to see what was happening. The pursuers' position only became clear in July 2003 when, having instructed new solicitors, they recalled the sist and made it clear that they intended to proceed. From the position of the first defender such a delay was wholly unreasonable. The incident was traumatic for her, not only because of her husband's death but also on account of his conduct at the time. That anxiety, and the disruption to her life, would continue whilst the case was hanging over her. By contrast, the pursuers stood to gain nothing by the litigation. Her husband had left no assets. Any decree obtained by the pursuer would be for naught if the insurers and the Motor Insurers Bureau continued to insist that they would not pay. In any event, if the action were dismissed, the pursuer would, or might, have a remedy against her former solicitor. There was inevitable prejudice to the first defender in dealing with the case this long after the accident. The evidence from the FAI would be placed before the court instead of oral evidence. However, different questions arose in the context of a civil damages action and there would be no opportunity of cross-examining any witnesses. The pursuers' case now included new averments of fault which had not been dealt with at the FAI.

Relevancy
[13] Miss Smart took two separate points in support of her general plea to the relevancy of the pursuers' claim. The first related to the form of the decree sought against the first defender. In terms of the first conclusion, the decree was sought cognitionis causa tantum against the first defender as heir of the late Robert James MacRae for payment of certain sums. The form of decree cognitionis causa tantum was appropriate only to constitute the liability of the estate of the deceased. The first defender, as heir, had no liability. Yet the form of the conclusion was for payment by the first defender. In Article 8 of Condescendence the pursuers include the standard averment that the defenders have been called upon to make reparation but refuse or delay to do so. The first plea-in-law for the pursuers says that, the pursuers having sustained loss, injury and damage through the fault of the late Robert MacRae and of the second defender, "the pursuers are entitled to reparation from the defenders therefor." This all showed that the action was directed against the first defender, as a matter of substance, for payment. There being no liability on the part of the first defender, that action was irrelevant and was not improved by the misuse in the first conclusion of the form of decree appropriate only for establishing the liability of the estate.

[14] Miss Smart's second argument was that the averments made against the first defender, by reference to the conduct of Robert MacRae, failed properly to instruct a case of negligence against Mr MacRae. She referred to passages at pp. 8-9 of the Record. In those passages, the pursuers make averments as to the conduct of Mr MacRae in driving the car just before the accident. They aver that he was driving around a bend on the wrong side of the carriageway, he braked and returned to the correct side of the carriageway and then, suddenly and without warning, he drove to his off-side into the path of the lorry. But in Article 4 of Condescendence the pursuers make averments as to the defective condition of the tyres, for which they blame the second defender. They say that the condition of tyres made the car more difficult to control. They do not say that Mr MacRae was aware of the defective condition of the tyres or the resulting difficulties in controlling the car. In those circumstances it cannot be known whether the accident was brought about by the negligence of Mr MacRae or by the faults in the tyres. The entire source of the pursuers' knowledge is the FAI. The evidence there takes the matter no further. In short, the cause of the accident cannot be determined and the pursuers do not offer to prove what happened. I was referred to Porter v Strathclyde Regional Council 1991 SLT 446. In those circumstances Miss Smart urged me to hold that no relevant case had been pled concerning the negligence of Mr MacRae and to dismiss the action.

Second defender's submissions

Inherent power
[15] For the second defender, Mr Dunlop adopted what Miss Smart had said in relation to the existence of the inherent jurisdiction. In support of Miss Smart's submission that the Rules of Court were not a complete code, Mr Dunlop referred me to Thomson and Middleton, Manual of Court of Session Procedure, published in 1937, at p.vi of which the following passage appears:

"It follows that it would be quite wrong to assume that the Rules of Court contain in themselves a complete code of Scots procedure or even the solution of all the problems of future procedure. The Rules of Court are, after all, only rules. They are the new machinery for the better functioning of our traditional methods. The Rules require to be fitted into the complex traditional structure of our procedure."

Mr Dunlop also referred me to a passage in Maxwell, The Practice of the Court of Session, in Chapter 10, under the heading "Rules of Procedure":

"Practice in the course of litigation is due to two distinct causes - one the written rules, and the other the accepted and traditional practice of the Court. The written rules are enacted by the Court, and by them parties and judges alike are bound. Principles laid down by practice, on the other hand, while they will in every ordinary case be regularly obeyed, do not have the effect of an enactment, and do not prevent a judge from departing from such practice if in any case he thinks that the peculiar exigencies of the case demand in the interest of justice that that practice should not be obeyed.

A rule enacted by Act of Sederunt can be altered only by enactment; but a rule of practice may be modified by innovation combined with persistence of practice until through lapse of time a new rule has been evolved; and a rule of practice may be thus abrogated.

In the application of enacted rules and rules of practice, the judge is the master of the procedure before him and has general command over the process."

Mr Dunlop cited Mearns v Smedvig Ltd 1999 S.L.T. 585 as illustrating one example of the exercise of the inherent jurisdiction, namely the inherent jurisdiction to stay or sist an action if one party was behaving unreasonably in the litigation. That was an example of where the court would intervene to deal with an injustice in a manner not provided for in the Rules of Court. The inherent power had been recognised in Junner v North British Railway Co (1877) 4 R. 686. Under reference to the English authorities, Mr Dunlop said that Birkett v James made it clear that the power being exercised was part of the inherent jurisdiction of the court. If the court in Scotland had the same inherent jurisdiction as the High Court in England, it must have the same inherent power to dismiss an action for delay. It would be surprising if Scots judges were to deny themselves the power which, according to Erskine, is the life-blood of justice. He pointed out that the quotation from Sir Jack Jacob, to which I have already referred, has been cited with approval, not only in Newman and in the Court of Appeal of Manitoba, but also by Lord Bingham in the House of Lords in Grobbelaar v News Groups Newspapers Ltd [2002] 1 WLR 3024 at para. 25.

Article 6 of the Convention
[16] Mr Dunlop adopted Miss Smart's submissions on Article 6 and simply sought to emphasise two points. The first was that, as explained by Lester and Pannick, the purpose of the requirement in Article 6 was to protect all parties to court proceedings from excessive procedural delays and to prevent a litigant remaining too long in a state of uncertainty about his fate. Here the second defender at the age of 76 was facing a claim for a large amount in respect of something that had happened 20 years ago. The second point was to emphasise the "truly exceptional" length of the delay in the present case.

Delay/ prejudice
[17] Mr Dunlop submitted that the court's discretion should be exercised along the lines indicated by Allen and Birkett v James. Although the pursuers were entitled to bring proceedings at any time up to the end of the statutory limitation period, the more time which was allowed to go by before the action was commenced, the greater the obligation to get on with the action thereafter. He also drew my attention to Securum Finance Ltd. v Aston [2001] Ch 291 as showing a departure from Birkett v James in that the court would now (after the introduction of the CPR) not so readily assume that a second action begun by the plaintiff (claimant) after his first action was dismissed for delay, and therefore would be more ready to dismiss an action for delay within the limitation period; and to Roebuck v Mungovin [1994] 2 AC 224 for the proposition that acquiescence in the delay by the defender, or other conduct by the defender encouraging the plaintiff to believe that the action would proceed, was not an absolute bar to striking out but was simply one factor to be taken into account in the exercise of the court's discretion. He reminded me that both sets of defences had included from the outset a plea-in-law in support of their application to dismiss for delay, and any conduct on their part had to be seen against that background.

[18] Mr Dunlop referred me to the averments made by him on Record in support of the pleas-in-law anent delay. The second defender was 56 at the time of the accident. By the time of the proof he would be 76 or older, and will have been retired for about 15 years. His recollection, and that of other witnesses, will have dimmed. The vehicle had been scrapped, and the tyres destroyed, at the conclusion of the FAI. All documentation once held by him has been destroyed following his retirement. Further, he was not insured; and this was through no fault of his own, since the car was being driven without his knowledge by someone other than the hirer. The case was not a simple road traffic accident case. Stark questions of negligence arose. There was inevitable deterioration in the quality of evidence available. The responsibility for that lay with the pursuer or his former solicitors. The sist could have been recalled much earlier. Even after the sist was recalled, the case had been restored to the Adjustment Roll on four occasions, which was hardly indicative of expeditious progress even then.

Relevancy
[19] Mr Dunlop made submissions as to the relevancy of the pursuers' claims in respect of both causation and negligence. So far as concerned causation, he pointed out that in Article 3 of Condescendence there were averments that Mr MacRae had lost control of the car. In Article 4, whilst there were averments concerning the rear tyres of the car - the nearside rear tyre, so it is alleged, being inflated to the pressure of 6 PSI in excess of that recommended by the manufacturers whilst the offside rear tyre was found to contain two nails which had been imbedded in its tread for a considerable period of time, causing gradual loss of pressure within the tyre - no causal link is set out between the condition of the tyres and the accident. In this respect it is simply said that the car was more difficult to control and that, Mr MacRae, the driver, would have known well before the accident that that was the case. It is not a case of a "blow out" giving rise to a sudden and immediate loss of control. The FAI report in fact excludes this possibility. A case which only went as far as saying that the car was rendered more difficult to control was a million miles away from the pursuers' averring a causa sine qua non, let alone a causa causans.
[20] Turning to the question of negligence, Mr Dunlop submitted that there was no factual basis on record for a case that the second defender had failed in his duty of reasonable care. The case was wholly dependent on the vehicle not being roadworthy. The pursuers admit that no radial deflation damage was noted to the rear off-side tyre on the car. They also admit that the tyres on the car were in a legal condition. How is it negligent if the vehicle, and in particular its tyres, was in a legal and roadworthy condition? Exceptional circumstances would need to be averred to set up such a case. What is the basis for saying that the vehicle was not roadworthy? What was the basis for saying that the second defender should check the vehicle's tyres once a week? Why was it negligent for the second defender to hire out a vehicle whose tyres were legal? Mr Dunlop submitted that the destructive effect of the admission by the pursuers was made clear by reference to the Motor Vehicles (Construction and Use) Regulations 1978. He referred me to regulations 107 and 108. The admission that the tyres were legal meant that it was admitted, in terms of those regulations, that the tyres were inflated and fit for use and were free of any defects causing danger. It was, in effect, an admission that proved that the second defender was not negligent. He asked me to dismiss the claim as against the second defenders.

Pursuers' submissions

Inherent power
[21] For the pursuer, Mr Campbell, QC. submitted that the Court of Session had no inherent power to dismiss an action for want of prosecution. He noted that in Newman, the narrative of counsel's submissions showed that no basis had been advanced for the existence of the power; the case had been argued simply on the basis that there was no authority to the contrary. It was extraordinary that a matter which is said to be "beyond doubt" is predicated upon very general remarks in Erskine and in Hall. Hall was a case dealing with contempt of court, the power in respect of which is exercised week in week out. There was nothing in Stair or Banckton equivalent to this. It was a scant basis for asserting the existence of the power. Under reference to Mr Dunlop's reliance upon the preface to Thomson and Middleton, Manual of Court of Session Procedure, and the references therein to the rules not being a complete code, Mr Campbell said that there was nothing in Mackay's Manual of Practice or McLaren to like effect. Maxwell, The Practice of the Court of Session, relied upon by Mr Dunlop, had referred to the "traditional practice" of the court, but there was no traditional practice suggesting that the court had a power to dismiss for delay. He submitted that whilst Sir Jack Jacobs' description of the inherent jurisdiction may be an accurate description of the power of the English courts, and no doubt those of Manitoba, it was not necessarily descriptive of the power of the courts in Scotland. The English courts had asserted an inherent power to deal with a particular situation which, by the time of Allen, had become scandalous. There was no suggestion that the situation in Scotland was as bad or demanded such an innovation. Mr Campbell submitted that the institutional writers based themselves on the practice of the court. Practices had grown up. That was easy to understand in a developing legal system. But at the present stage of development, one would not expect wholly new powers to be developed by judges for the first time. The power to innovate had been superseded by legislation, by rules of court and by the creation of the Rules Council. There were no examples in recent times of judges having developed powers in court based upon the statement found in Erskine. We have now reached the stage, he submitted, where it was not open to the judges to use the broad power in a manner in which it had never previously been used. He submitted that Sheriff Principal Macphail (as he then was) in Newman had proceeded from a false premise, by distinguishing cases which had been cited for the absence of an inherent power rather than looking to see on what basis such a power could be supported by authority. Mr Campbell relied on the decision of Lord Johnston in Esso Petroleum Co Ltd v Hall Russell & Co Ltd (No. 2). He also relied upon the decision of Lady Smith in Tonner v Reiach & Hall (unreported, 5 August 2005), a decision issued after the first part of the hearing of this matter on the Procedure Roll and before the resumed hearing towards the end of September. Mr Campbell took me carefully through that decision, in which Lady Smith had held that the court had no inherent power to grant decree of absolvitor on grounds of delay, and urged me to follow it.

[22] Under reference to the English authorities, Mr Campbell submitted that what had happened was that the court, faced with a particular set of circumstances, exercised in a more rigorous way than previously a power which no one appeared to have disputed that they possessed. There was no argument whatsoever as to whether the power existed. In this context he referred me both to Allen and to Birkett v James. He referred me also to Tolley v Morris [1979] 1 W.L.R.592 and to Department of Transport v Chris Smaller (Transport) Ltd [1989] 1 A.C.1197 in which Lord Griffiths suggested that the situation had not significantly improved despite Allen and Birkett v James.

[23] Mr Campbell pointed out that the earlier cases in Scotland had been argued on the agreed assumption that if the court did have a power to dismiss for delay it was to be exercised on all the same principles as had been set out in the English cases. But, he submitted, that there was no compelling reason why that should be the case. In the end, however, I did not understand his submissions to represent any radical departure from the position set out in those cases, and I shall deal with this at a later stage.

Article 6 of the Convention
[24] Mr Campbell submitted that the case had not been made out that there had been a breach of the right to a hearing within a reasonable time. But he submitted that, even if I were against him on that, I should still allow the action to proceed since, despite the passage of time, it was still perfectly possible for there to be a fair trial of all the issues in the case. Under reference to the passages from Lester and Pannick to which I have referred, Mr Campbell emphasised that the purpose of article 6 was to protect all parties, not just the defenders. The authors stated in para. 4.6.47 that, for the purposes of assessing whether a reasonable time had elapsed, time is counted from the initiation of court proceedings, not earlier. The present action was raised timeously. The fact that there had been an earlier action afforded no basis for saying that the period before the raising of the present action was relevant to the assessment of a reasonable time. But in any event, in terms of the 1998 Act, the Convention only came into force in the United Kingdom on 2 October 2000 - nothing before that date could be said to be a breach of Convention rights. Under reference to para. 4.6.49, Mr Campbell submitted that it was only delays by the state that were relevant. The state was not responsible for delays due to the conduct of the applicant. The action had been sisted in 1997 at the hand of the first defender and had not been recalled until 2003. This was the main passage of time in respect of which complaint is now made. That period of delay could have been brought to an end by either defender. They could not now complain about that delay. It might have been different if the court had refused their motion to recall the sist, but it would presumably only have done so if there were good reason to continue the sist. The defenders had not made out their case that there had been unreasonable delay on the part of the court, which had at no stage done anything it was not asked to do or refused to do anything it was asked to do. While Mr Campbell accepted that a situation in which the court has no procedures for recalling a sist at its own hand is less than perfect, it was not that system which caused delay but the failure of the parties to apply to recall the sist. He submitted that, in any event, the state had a margin of appreciation as to how it dealt with its civil procedures so as to avoid prejudicial delay.

[25] Further, the mere fact that a reasonable time had come and gone (if it had) did not mean that the court should stop the case altogether. It should only do that if a fair trial were no longer possible. Mr Campbell referred me to Attorney General's Reference (No.2 of 2001) [2001] 1 WLR 1869 where Lord Woolf CJ had pointed out, at para. [19], by reference to civil proceedings, the illogically of an approach that required the court not to proceed to trial when there had been a contravention of the reasonable time requirement without the fault of either party. The House of Lords affirmed the decision not to stay proceedings where it was not shown that the breach of the reasonable time requirement had made a fair hearing impossible: [2004] 2 AC 72. He also referred me to Dyer v Watson 2002 SC (PC) 88 and Her Majesty's Advocate v R 2003 SC (PC) 1. The cases emphasised the fact that the relevant acts must be those of a public authority. In the latter of these cases, at para. [14], Lord Steyn cited with approval the much quoted statement of Hardy Boys J in Martin v Tauranga District Court [1995] 2 NZLR 419, 432 as exposing the fallacy in the proposition that breach of the reasonable time guarantee automatically triggers a right to have the proceedings brought to an end: "The right is to trial without undue delay; it is not a right not to be tried after undue delay." If a fair trial were still possible, despite the delay, the stopping of proceedings would be an exceptional remedy. Lord Hope at para. [88] also pointed out that the prospect of automatic termination for breach of the reasonable time requirement cannot sensibly be applied in civil proceedings. I was also referred to Theory and Practice of the European Convention on Human Rights by van Dijk and van Hoof, and to a number of decisions of the European Court of Human Rights, including Buchholz v Federal Republic of Germany 3 EHRR 597, Zimmerman and Steiner v Switzerland 6 EHRR 17, Martins Moreira v Portugal 13 EHRR 517, Vernillo v France 13 EHRR 880, and Silva Pontes v Portugal 18 EHRR 156. These decisions emphasised that what is a reasonable time will depend on all the circumstances of the case, though special diligence may be called for in determining compensation for road accidents (Pontes para. 39); that only delays by the state are relevant; and that the period to be taken into account does not include any period before the Convention came into force in the country concerned (Pontes para. 38); and that the applicant must have availed himself of all possible remedies (van Dijk p. 449). I was also referred to Porter v Magill [2002] 2 AC 357 and in particular to the speech of Lord Hope at paras. 106-115; and to the recent decision in Tonner in which Lady Smith rejected the argument that the effect of Article 6 was to give the court power to dismiss an action or grant absolvitor where the pursuer was responsible for the delay.

[26] In summarising his submissions on this point, Mr Campbell said that no breach of Article 6 was made out. There had been limited time since the Convention came into force in October 2000; and delay was not attributable to the state, since the parties themselves had taken no steps to recall the sist. If he was wrong about this, he submitted, dismissal or absolvitor would not be the appropriate remedy at this stage. It was not possible to conclude at the present time that a fair hearing would be impossible. The pursuers themselves may have difficulties of proof. If, at the proof, the judge hearing the evidence thought that a fair trial was not possible, he could at that stage do what was appropriate, including grant absolvitor.

[27] In a brief reply on this point, Miss Smart drew my attention to paras. [34]-[35] in Attorney General's Reference (No. 2 of 2001) where Lord Nicholls, having pointed out that the court was a public authority for the purpose of the Convention asked the question: "what if the conduct of which complaint is made is conduct by a court, as where holding a criminal trial would itself be incompatible with a convention right?" and answered it by saying: "in such a case the court cannot hold a trial. When the very holding of the trial by the court would be unlawful, the trial must be stayed." She argued that the obligation on the court to stop the proceedings was not ancillary to a prior breach by it or another public authority. Allowing a proof to proceed after such delay as had cast doubt upon the possibility of a fair trial would itself be a separate and independent unlawful act by the court. This was consistent with what Lord Hope had said at paras. [87]-[89] of that case, and with the approach in Newman.

Delay/ prejudice
[28] Mr Campbell emphasised that all four people in the vehicle had died. There was not any direct evidence of what had happened except from the driver of the lorry. But there never had been. Therefore the dimming of recollections over the years was not really germane to the present situation. In respect of almost all of the points relied on by the defenders in support of their arguments that they were prejudiced, any prejudice already existed before the case was sisted. All parties had been represented at the FAI in 1987. There had been a detailed police investigation. There had been expert evidence. Each party could have access to the transcripts of the evidence. The determination of the FAI was not issued until January 1991, in a single hand-written page. Any evidence that had been destroyed had been destroyed in the late 1980s. Whilst it was correct to say that the present action raised some different questions from those that were raised in the FAI, that point had only limited force since the occupants of the car had all died. The lorry driver had said what he saw. In some ways the court was in a better position that in the ordinary case which came to proof four or five years after the accident, because there had been a full investigation a year after the accident and the available evidence had been heard and recorded.

Relevancy
[29] In answer to the criticisms of the pursuer's case, Mr Campbell first dealt with the form of the decree sought against the first defender. He referred me to Traynor's Maxims and said that there was no question of seeking to establish a debt against the first defender personally. He referred me to Smith v Tasker 1955 SLT 347 and Stevens v Thompson 1971 SLT 136. The pursuers are seeking to hold Mr MacRae and the second defender jointly and severally liable. The first defender did not confirm to Mr MacRae's estate. She therefore cannot be sued as executrix. The only way of establishing the case against Mr MacRae is by raising an action cognitionis causa tantum against his legal representative. The form of the conclusion, he submitted, was the correct form to make it clear that decree against the first defender was sought only in her capacity as representing the estate of the deceased and not with a view to any personal liability being imposed upon her.

[30] Turning to the criticism of the pursuers' pleadings anent negligence, Mr Campbell pointed to the averments in Article 4 to the effect that Mr MacRae had driven along the road prior to the accident and should have been alerted to the difficulties of controlling the car. He also pointed to the averments in Article 3 that the driver had been exceeding the speed limit and had had a blood/alcohol count at the time of the accident significantly above the permitted level for driving. He submitted that the averments as to the condition of the tyres were such as to allow the inference that that condition ought to have been known to the second defender. Sufficient was averred to allow the matter to go to proof. As to Mr Dunlop's reference, on behalf of the second defenders, to the pursuers' admission that the tyres were in legal condition, Mr Campbell said that the admission had been amended in recently per incuriam. Taken at face value, they would simply be inconsistent with the pursuer's averments that the tyres were at the incorrect pressures. The reference in the FAI transcript to the legality of the tyres was a reference to the depth of tread, not to the tyre pressures. The admission on record that the tyres were legal had been taken from that and should be read as meaning that they were legal "quoad their tread". Any wider admission than that was one that the pursuers were not able to make. He asked for leave to amend the record, and handed up a proposed amendment the effect of which was to delete that submission.

[31] In answer to Mr Dunlop's submissions as to the relevancy of the pursuers' case on causation, he accepted that the pursuers could not say that the accident would not have happened but for the condition of the tyres. However, the court was here concerned about risk. What the pursuer had to establish to bring home liability to the defenders was that the defenders had failed in a duty and that the result of that failure materially contributed to the risk that eventuated. If the second defender hires out a car without the expected degree of "handleability", and that car comes into contact with a vehicle on the other side of the road, he has contributed to the likelihood of those events coming about. The accident may have been caused by a number of factors; maybe the car was being driven too fast; or too much drink had been consumed; or the driver had braked inappropriately; or the car had been driven on the wrong side of the road; or the car was difficult to handle because of inappropriate differential tyre pressures. The pursuers were not in a position to say that control of the car was lost as a result of the second defender's negligence, either solely or at all. But the breach of duty by the second defender increased the risk of the accident occurring. That, he submitted, was enough. In support of that argument he referred to the recent House of Lords decision in Fairchild v Glenhaven Funeral Services Limited [2003] 1 AC 32 per Lord Hoffmann at paras. 54, 65-67 and 72, and also to the earlier decision of McGhee v National Coal Board 1973 SC (HL) 37, per Lord Reid at pp. 51ff. He submitted that I should allow a proof before answer reserving these general pleas to the relevancy.

[32] In a brief reply, Mr Dunlop opposed the pursuer's motion to amend. He submitted that the amendment came much too late. Mr Dunlop had made his submissions in May, after which the case had adjourned. There was no application to amend at that time, nor at any time until during the course of Mr Campbell's submissions. No draft had been produced prior to the resumed hearing. He submitted that the per incuriam explanation did not bear scrutiny. He suggested that the transcript of the evidence at the FAI, on a proper reading, showed that witnesses were talking about the deflation of the tyres rather than simply tyre tread. The admission was properly made and the pursuers should not now be allowed to resile from it. But even if the amendment was allowed, there remained on record no standard by reference to which the pursuers could invite the court to measure the acts or omissions of the second defender in respect of the tyres. The pursuers' case remained irrelevant on negligence. As to causation, Mr Dunlop emphasised Mr Campbell's admission that he could not say the accident would not have happened but for the incorrect inflation of the tyres, or even that the incorrect inflation of the tyres contributed in any way. He submitted that the approach set out by the House of Lords in Fairchild did not apply to this type of case. He referred me to Porter 1991 SLT 446 at 448B-G, and pointed out that the second sentence quoted from McGhee had not been disapproved in Fairchild. He said that in non-disease cases the normal causation test applied: i.e. on balance of probabilities, would the accident have been avoided had there not been that negligence. The pursuers accepted that they could not prove that. Fairchild itself only applied to certain types of cases, where it was simply impossible as a matter of science to prove the liability of any particular defender. Here, Mr MacRae drove on the wrong side of the road. That gave rise to a prima facie inference of negligence. There was no place for an application of the principle developed in Fairchild. He referred me to various others passages in Fairchild. He also referred me to two further cases, namely Gregg v Scott [2005] 2 AC 176 and the decision of Lord Nimmo Smith in McTear v Imperial Tobacco Limited (unreported 31 May 2005) at paras. 6.25-6.29, in support of his argument that the approach in Fairchild did not apply to a case such as the present.

Discussion

inherent power/ jurisdiction
[33] I propose first to consider the arguments presented to me on the question of whether the court has an inherent power to put a stop to proceedings in case of delay where that delay causes prejudice to the defenders or gives rise to a substantial risk that a fair trial will not be possible. These arguments raise fundamental issues as to the inherent power or jurisdiction of the court. It is tempting on this point simply to follow the decision of Lady Smith in Tonner and leave it to the parties to reclaim my decision if they so wish. However, to adopt this course would fail to do justice to the very careful submissions made to me, partly before the decision in Tonner, and would not meet the expectations of the parties. I am conscious also that I may have had fuller citation of certain lines of authority, and the arguments may have differed in emphasis if not in substance. It seems right, therefore, that I should attempt a separate analysis of this somewhat vexed question.

[34] Before seeking to apply to Scots law principles developed in English and other foreign jurisprudence, care must always be taken to ensure that the issue in question is one where reference to such principles is likely to be instructive. In certain areas, such as the development of the common law of negligence or contract, there is little difficulty; and reference is frequently made to decisions of English and other common law courts. But where the problem before the court is one of its own practices and procedures, such a reference is less likely to be of assistance. The practice and procedures of the court are the product of historical development and of more recent, and precisely formulated, Rules of Court. Any attempt to identify, by reference to English decisions, the existence in Scotland of a procedural power to put a stop to actions on grounds of delay, must attract criticism along these lines. I start, therefore, by looking a little more closely at the nature of the power in England by reference to which the case for the defenders is advanced; and, in so doing, to consider what, if any, assistance can be gained from the English cases.

[35] In Birkett v James, at p. 318, Lord Diplock summarised the principles, laid down by the Court of Appeal in Allen v Sir Alfred McAlpine, upon which the jurisdiction to dismiss an action because of delay on the part of the plaintiff had been and should be exercised:

"The power should be exercised only where the court is satisfied either (1) that the default has been intentional and contumelious, e.g. disobedience to a peremptory order of the court or conduct amounting to an abuse of the process of the court; or (2) (a) that there has been inordinate and inexcusable delay on the part of the plaintiff or his lawyers, and (b) that such delay will give rise to a substantial risk that it is not possible to have a fair trial of the issues in the action or is such as likely to cause or to have caused serious prejudice to the defendants either as between themselves and the plaintiff or between each other or between them and a third party."

I shall return to consider those principles in due course. For present purposes, it is to be noted that, from the beginning, the English courts regarded themselves as exercising an inherent jurisdiction rather than a power conferred by Rules of Court. This was made clear in Allen v Sir Alfred McAlpine: see e.g. per Lord Denning MR at p. 245. The inherent jurisdiction or power of the court ran alongside specific powers conferred by the Rules of Court to dismiss an action for breach of certain procedural requirements, such as to deliver a statement of claim within a specified time, to take out a summons for directions, or to set down the action for trial: see again per Lord Denning MR at p. 245. It appears from the judgments in the case that the powers conferred by the Rules of Court had, in the past, been exercised restrictively. The inherent jurisdiction was invoked in part to deal with that problem. The inherent jurisdiction was applicable both to circumstances covered by the Rules of Court and to other circumstances not covered by the Rules of Court. The decisions of the Court of Appeal commonly referred to as Allen v Sir Alfred McAlpine were decisions on appeals in three separate cases. The facts of each are set out in the judgment of Lord Denning MR His description of the facts makes it clear that the cases fell into both of those categories of circumstance. In the first case, the plaintiffs had failed to take out a Summons for Directions: see at pp. 246-7. That was therefore a case where the Rules of Court provided that the court might dismiss the action. In the second, there was no such failure: the plaintiffs were simply dilatory: see pp. 249-50. In that case, if the action were dismissed, it had to be under the inherent jurisdiction of the court. In the third case, there was probably no breach of the Rules giving the court power under the Rules to dismiss the action (though the circumstances are not entirely clear): see p. 252. On that understanding, there was power to dismiss under the inherent jurisdiction or not at all. The Court of Appeal considered each case in terms of the inherent jurisdiction and dismissed the action in the first and third cases, though not the second.

[36] Birkett v James was a case where the action was not set down for trial within the required time (see p. 324) and where, therefore, there was power to dismiss under the Rules of Court. In the event, primarily because the limitation period had not expired and it was, therefore, open to the plaintiff to commence a new action, the House of Lords allowed an appeal against the decision of the courts below to dismiss the action. However, their Lordships approved the use of the power identified in the courts below, and also emphasised that the relevant power under consideration was a power under the inherent jurisdiction and not a power under the Rules: see per Lord Diplock at p. 318 and also per Lord Salmon at p. 329.

[37] The use of the expression "inherent jurisdiction" or "inherent power" is not, of course, of itself decisive. A power so described may, nonetheless, simply be a power which the courts have developed, ancillary to powers conferred by the Rules of Court, to regulate practice and procedure before the court. If so, the development of the power in England might be of little interest in Scotland. However, the nature of the inherent power was clarified, if clarification were needed, by the House of Lords, a few years later, in Bremer Vulkan Schiffbau und Maschinenfabrik v South India Shipping Corporation Ltd. [1981] AC 909. In that case, the House of Lords was required to investigate further the basis of the jurisdiction to dismiss proceedings for delay. This was in the context of arbitration proceedings which had dragged on interminably, where the plaintiffs in the action (the respondents in the arbitration) applied for an injunction restraining the defendants (the claimants in the arbitration) from continuing with the arbitration. The House of Lords held, by a majority, that the courts had no power to intervene in this way. The argument in the House of Lords focused to a large extent on the supposed analogy between arbitration and litigation; the respective sources of the jurisdiction to dismiss an action for want of prosecution; and the supposed jurisdiction to put a stop to arbitration proceedings. At p. 977 Lord Diplock, with whom Lords Edmund-Davies and Russell of Killowen agreed, addressed the matter by examining the source of the jurisdiction to dismiss for want of prosecution:

"My Lords, to test the soundness of this analogy in my view calls for a closer legal analysis ... (1) of the respective sources of the jurisdiction of the High Court (a) to dismiss for want of prosecution an action that is pending before it and (b) to prohibit further proceedings in an arbitration pending before a duly qualified arbitrator; and (2) of the differences between action at law and arbitration as ways of resolving disputes between private parties as to their contractual rights.

The High Court's power to dismiss a pending action for want of prosecution is but an instance of a general power to control its own procedure so as to prevent its being used to achieve injustice. Such a power is inherent in its constitutional function as a court of justice. Every civilised system of government requires that the state should make available to all its citizens a means for the just and peaceful settlement of disputes between them as to their respective legal rights. The means provided are courts of justice to which every citizen has a constitutional right of access in the role of plaintiff to obtain the remedy to which he claims to be entitled in consequence of an alleged breach of his legal or equitable rights by some other citizen, the defendant. Whether or not to avail himself of this right of access to the court lies exclusively within the plaintiff's choice; if he chooses to do so, the defendant has no option in the matter; his subjection to the jurisdiction of the court is compulsory. So, it would stultify the constitutional role of the High Court as a court of justice if it were not armed with power to prevent its process being misused in such a way as to diminish its capability of arriving at a just decision of the dispute.

The power to dismiss a pending action for want of prosecution in cases where to allow the action to continue would involve a substantial risk that justice could not be done is thus properly described as an 'inherent power' the exercise of which is within the 'inherent jurisdiction' of the High Court. It would I think be conducive to legal clarity if the use of these two expressions were confined to the doing by the court of acts which it needs must have power to do in order to maintain its character as a court of justice."

It should be observed that Lords Fraser of Tullybelton and Scarman, who dissented, did not doubt the existence of the inherent power to control court proceedings, but would have gone further and interfered by way of injunction to prevent the respondents to the arbitration being harassed, in breach of their equitable rights, by arbitration proceedings which could not result in a fair trial. They expressed no dissent from Lord Diplock's analysis of the basis of the court's power to intervene in civil proceedings.

[38] A further attempt to find a means of bringing arbitrations to an end on grounds of delay by the claimant, this time by suggesting that inactivity of the parties could be construed as an implied agreement to rescind the agreement to arbitrate, failed in the House of Lords in Paal Wilson & Co. A.S v Partenreederei Hannah Blumenthal (The "Hannah Blumenthal") [1983] 1 AC 854. I refer to this only for the reference, as part of the historical background set out in the decision, to the power of the High Court to dismiss court proceedings for delay as being the exercise by the court "of its inherent power to prevent abuse of its own process by procrastination": see per Lord Diplock at p. 918.

[39] I should note that neither Bremer Vulcan nor The Hannah Blumenthal were cited in argument. However, I took the view that they did not raise different points from those already addressed by counsel in their submissions and I therefore did not think it necessary to put the case out for further submissions on them.

[40] It is clear, therefore, that the courts in England, in exercising their inherent power to strike out for delay, were not exercising a power which, although described as "inherent", existed only as an adjunct of English domestic procedure. They were exercising to a power which is properly to be regarded as an "inherent power" as explained by Lord Diplock, which exists regardless of Rules and practices, to control abuse of proceedings before the court. As Lord Diplock remarked in Bremer Vulcan, it is not a power which is peculiar to the High Court in England - it is a feature of every civilised system of government that the court must have a power to prevent its processes being misused in a way that diminishes its capability of arriving at a just decision of the dispute. This, so it seems to me, is the same inherent jurisdiction or power as is referred to in the definition of Sir Jack Jacob, approved by Lord Bingham in Grobbelaar. It is the same power also as was referred to by Lord Devlin in Connelly v DPP [1964] AC 1254 when he said (at p. 1347):

"the judges of the High Court have in their inherent jurisdiction, both in civil and in criminal matters, power (subject of course to any statutory rules) to make and enforce rules of practice in order to ensure that the court's process is used fairly and conveniently by both sides."

The circumstances in which it may be necessary to resort to such a power will, no doubt, be many and various; and the manner of its exercise will obviously vary according to the circumstances, the framework of Rules and procedures, and other factors peculiar to the legal system in the particular jurisdiction.

[41] Lord Fraser said in Bremer Vulcan at p. 991 that if there were no means of stopping an arbitration, even if there had been delay such as to preclude the possibility of a fair trial, it would "reveal a lamentable gap in English jurisprudence". On this point he was in the minority. He would no doubt have regarded the position of an action in court as a fortiori that of arbitration, and in this one can perceive that his views would accord with the majority. It was surely not in his mind that such a gap, lamentable in England, could exist happily in Scotland.

[42] I do not consider that there is any such gap. To my mind, it is inconceivable that the Court of Session should not have an inherent power to control its processes to prevent abuse. This is articulated in the passage at Erskine I ii 8 to which I was referred:

"In all grounds of jurisdiction, whether civil or criminal, supreme or inferior, every power is understood to be conferred without which the jurisdiction cannot be explicated... By the same rule, every judge, however limited his jurisdiction may be, is vested with all the powers necessary either for supporting his jurisdiction and maintaining the authority of the court, or for the execution of his decrees. Hence the Court of Session, though its jurisdiction be merely civil, has an inherent power of punishing those who shall insult any of the judges while the court is sitting, or who shall obstruct the execution of its sentences ..."

To my mind, the relevant question is not "why should such power exist?" but "why should it not exist?" This is the approach, as I understand it, which appealed to Sheriff Principal Macphail in Newman at paras. [24]-[25], and it is an approach which I readily adopt.

[43] One objection which is taken is this: that if the power has always existed, why has it never been identified or invoked until recently? The question has a forensic attraction; but to my mind it fails to distinguish between, on the one hand, the existence of the underlying inherent power or jurisdiction of the court to control its processes; and, on the other, the identification of one particular manifestation of that power, namely the power to put a stop to actions that have been subject to excessive delays to the prejudice of the possibility of a fair trial. If, as is shown in the cases to which I have referred, the power to put a stop to such actions is "but an instance of" the general power, the investigation should be into the existence of this general power; and it should engender no surprise that the particular application or instance of this general power has not been identified until recently. It may be noted that the same objection might have been taken in England: see e.g. per Roskill LJ in Bremer Vulcan at p. 944.

[44] The enquiry therefore falls naturally into two parts: first, as to the existence of the general power; and second, if the general power is shown to exist, as to whether there is any reason why it should not be instanced in a specific power to put a stop to such actions in appropriate circumstances.

[45] As to the first part of the enquiry, I have already suggested that it is inconceivable that the court does not have a general power to prevent its procedures being used to prevent injustice. The existence of such an inherent power in the Court of Session has been recognised and acted upon over the years in a number of different and seemingly unrelated situations. Hall v Associated Newspapers involved the exercise by the court of its powers in relation to contempt. The opinion of the Lord Justice-General (Lord Emslie) contains a clear exposition of the inherent jurisdiction of the court in that context. He says (at p. 9) that the source of the law of contempt

"is to be found in the indispensable power which is inherent in every Court to do whatever is necessary to discharge the whole of its responsibilities."

He cites in support of that proposition the passage from Erskine to which I have already referred. He adds, further down the page:

"... it is of vital importance that the Court should guard jealously, in the interests of justice, its inherent jurisdiction to vindicate the fair and impartial administration of justice and, as a corollary, to protect persons charged with crime and liable to be tried for such crime or other as may be libelled against them, from actions on the part of others which may prejudice their prospects of fair and impartial trial."

The context is, of course, different, but the statement of principle is entirely consistent with the general power to which I have referred. There was a live issue in that case as to the extent of the court's power to punish for contempt, and the passage cited from the Lord Justice-General is, in my opinion, part of the ratio of the decision; to that extent I consider that those remarks are entitled to more weight than was accorded them in Tonner. In actions for personal injury, the court has asserted and routinely exercised an inherent jurisdiction to sist an action in a wide variety of circumstances, and even to do so against the wishes of the pursuer. Examples of the exercise of this power are given in Chapter 5 of Division E of the newly published Court of Session Practice edited by Lord Macfadyen. One instance is where the pursuer unreasonably refuses to submit to a medical examination: see Junner v North British Railway Co. (1877) 4 R. 686, Duncan v Lord Advocate 1987 S.L.T. 349 and Duncan v Lord Advocate (No.2) 1987 S.L.T. 351. In the latter case the court founded upon the decision of the Court of Appeal in Starr v National Coal Board [1977] 1 W.L.R. 63. In Mearns v Smedvig, also a personal injury action, the court refused to grant the defenders' motion that the pursuer submit himself for examination by a particular company but accepted the principle and, at p. 588, cited with approval the remarks of Geoffrey Lane L.J. in Starr at p. 75 to the effect that the court had an "inherent jurisdiction" to order a stay when the justice of the case so required. The exercise by the Court of a dispensing power seems to me to be another instance of the exercise of the inherent jurisdiction: Boyd Gilmour & Co v Glasgow and South Western Railway Co. (1888) 16 R. 104. The exercise of the dispensing power, before the introduction of Rule 2 of the Rules of Court, in that and other cases is referred to, without apparent disapproval, in Brogan v O'Rourke Ltd. 2005 SLT 29 at para. [24]. The fact that there is now a Rule of Court dealing with this does not alter the fact that it was previously exercised on the basis of an inherent jurisdiction. Whether the Court can still exercise such a power independently of the Rule of Court is probably academic; but in any case is a different question which is relevant, if at all, at the second stage of the enquiry. These were the examples cited to me in argument. There are other instances running through the reported cases of the exercise of this inherent power: see, for example, the wide powers of the court with respect to expenses (Williamson v M'Pherson 1951, SC 438, George Howitt v W Alexander & Sons Ltd 1948 SC 154, Ramm v Lothian & Borders Fire Board 1994 SC 226); the power to alter a previous interlocutor where, due to excusable error, a party has not been heard (James Johnstone (James Strachan Milne's Trustee) 1936 SC 487); the allowance of additional defenders to be added at the stage of an appeal to the Court of Session from the Sheriff Court (Henderson v Campbell Brothers 1937 SC 91); many of the court's powers with respect to commission and diligence (see e.g. the very full discussion of this in Iomega Corporation v Myrica (UK) Limited 1998 SC 636 - the inherent jurisdiction, underlying the court's approach in that case, is best explained in Lord Caplan's observation, at p. 655, that the procedures have evolved under the inherent jurisdiction of the court to ensure the just disposal of litigation).

[46] If the general power to prevent abuse of its processes exists, as I consider that it does, the next question - the second stage of the enquiry - is whether that general power can be applied in Scotland to enable the court to put a stop to cases in which delay has caused prejudice to a defender or has put in jeopardy the possibility of a fair trial. In other words, do the Scottish Courts enjoy a power similar to that identified in Allen and Birkett v James.

[47] The principal argument against there being such a power is that it is not to be found in the Rules of Court, whereas those Rules do contain specific powers to dismiss an action at various stages where the pursuer has not progressed it in accordance with the Rules. It is to be inferred, so the argument goes, that the failure to confer such a power on the court in the Rules is deliberate. In Esso Petroleum Co. Ltd. v Hall Russell & Co. Ltd., in holding that there was no inherent power to dismiss an action for delay, Lord Johnston based himself entirely upon this view of the Rules: see pp. 129-130. Lady Smith applied that same reasoning in Tonner at paras [54]-[57]. This is a powerful consideration. As Lady Smith points out, the Rules of Court are promulgated under the power conferred by section 5 of the Court of Session Act 1998. Section 8 of that Act refers to the Rules Council and its role in framing rules, which are then considered by the court before they are embodied, if approved, in an Act of Sederunt. Further, an examination of the Rules of Court shows that consideration has been given to providing in the Rules for power to dismiss an action if appropriate progress is not made. There are specific Rules of Court in terms of which the court is given the power to dismiss an action for failure to take certain steps within the prescribed time: see Rules of Court 22.1(2), 22.3(1) and, in the new personal damages procedure, 43.7(2)(c) and 43.9(7)(a).

[48] However, I am not persuaded that the existence of such Rules precludes the Court from having and exercising an inherent jurisdiction to dismiss for delay. Much depends, to my mind, upon where one starts. I start from the assumption that the court has, and has always had, an inherent jurisdiction in its true sense, as explained by Lord Diplock in Bremer Vulcan. The Court of Session Act and the Rules of Court assume a relevance to that inherent jurisdiction only if they expressly or by implication (i) remove or restrict it, or (ii) fetter its exercise. There is nothing in the Court of Session Act which, in my opinion, could be construed as defining exhaustively the powers of the court nor as removing any inherent power previously possessed by the court. The "General Powers" set out in Part II of the Act are powers "in relation to Procedure". Section 5 confers power to regulate procedure by Act of Sederunt, but there is nothing in the Act to suggest that in areas not regulated by Act of Sederunt the court has no power to do anything. Indeed, it would be surprising if a rule-making power of this sort had that consequence. Consideration and formulation of new Rules of Court by the Rules Council, and the subsequent issue of an Act of Sederunt, takes time. Faced with new problems and circumstances the court must have the power to act. It may be only after the problem has been identified and the courts have responded to it, possibly different courts in different ways, that consideration is given to the formulation of a Rule of Court which may regulate the approach of the court in the future. That the court can act in the absence of a Rule of Court is shown by its power to sist proceedings, whether of consent or in the face of opposition from one or other party. The newly published Encyclopaedia of Court of Session practice deals with this in Chapter 5. No power to sist an action is conferred by any Rule of Court. But the power undoubtedly exists and the discretion to grant or refuse a sist is exercised on a daily basis.

[49] That is not to say that the Rules of Court have no effect in limiting the manner in which a power is exercised. Indeed, in most cases they will govern. If, after a new question has arisen, the Rules Council formulate a new Rule of Court which is then applied by Act of Sederunt, and this may or may not be after some period where the practice of different courts or judges has diverged, I would consider that such a Rule would inform and govern the manner in which the court can deal with that question in the future, at least in circumstances with which the new Rule is designed to deal. But the Rules presently reflect a piecemeal approach to case management and sanctions for delay which cannot, in my opinion, be treated as exhaustive of the court's powers in this respect.

[50] Before turning to consider in more detail some of the factors relied on by Lady Smith in Tonner, I propose to set out certain features of the jurisdiction exercised in England as shown by the cases cited to me in argument and consider how those features might "translate" into the procedures of the Court of Session. Of particular importance are the following points:

(1) The sanction applied by the courts in case of prejudicial delay, by which I mean delay of the requisite seriousness resulting in relevant prejudice, is dismissal. The expression often used is "dismissal for want of prosecution". This has to be viewed in the context of most time bars in England being periods of limitation rather than prescription. Dismissal is sufficient, provided that a new action would be time barred. Dismissal might not be effective in a case in Scotland which is subject to prescription, and where prescription can be interrupted by the commencement of proceedings even if they are thereafter dismissed for delay. If, in an action in Scotland founded on a claim in contract, the pursuer was guilty of prejudicial delay, the court might have to consider decree of absolvitor. Unlike decree of dismissal, this is a substantive decree and raises the question whether it is right that a procedural intervention by the court should give rise to a substantive decree. It does not appear to have argued in England that the courts should, in a case of prejudicial delay, give judgement for the defendants (the equivalent of absolvitor) rather than simply dismiss the action, so as to overcome the problem, identified in Birkett v James, of the pursuer being able to raise a fresh action. But I do not see why the court should not, against the background of the law of prescription in Scotland, give effect to its intention to bring proceedings to a halt because of such delay by granting decree of absolvitor. The point does not, of course, arise in the present case where the relevant time limit is one of limitation. It also seems to me that it would be competent for a court to dismiss part of a claim (or refuse to allow certain averments to probation) if satisfied that the delay prejudiced a fair trial only on that part, but I was referred to no authority on this point.

A plaintiff or claimant is not at risk of having his action dismissed solely on account of delay prior to the issue of the writ. There has to be relevant delay after the writ was issued, though long delay before issue of the writ has the effect that any post writ delay will be looked at more critically by the court and will more readily be regarded as inordinate and inexcusable. A plaintiff who delays in commencing his action has to get on with it. In order to justify striking out an action, there must be prejudice to the defendant flowing from the delay after the issue of the writ, though, in a case where the plaintiff had waited until the last moment before issuing his writ, the prejudice resulting from post writ delays might not need to be very great. As Lord Diplock put it in Birkett v James at p. 322: "a late start makes it the more incumbent upon the plaintiff to proceed with all due speed and a pace which might have been excusable if the action had been started sooner may be inexcusable in the light of the time that has already passed before the writ was issued." As to this, see generally Department of Transport v Chris Smaller (Transport) Ltd.

Tolley v Morris recognises, in the context of an application to strike out for want of prosecution, the indefeasible right of a plaintiff to bring an action within three years from ceasing to be an infant. That is relevant here. That right would equally be recognised in Scotland: compare, in the context of an application under s. 19A of the Prescription and Limitation (Scotland) Act 1973, McCabe v McLellan 1994 SLT 346, 352K-L. It follows that the pursuers cannot be relevantly criticised for not having started the action earlier than they did.

(4) It is not necessary that the prejudice consist of prejudice to the possibility of a fair trial. Prejudice may be of varying kinds, as identified by the decisions of the Court of Appeal summarised by Lord Griffiths in Department of Transport v Chris Smaller (Transport) Ltd at p. 1209 of that case.

(5) The courts in England have adopted the approach that the defendant in litigation in court (though not in arbitration) is entitled to "let sleeping dogs lie" without that being held against him if, at a later date, he wishes to apply to dismiss the action for want of prosecution. The rationale is set out by Lord Salmon in Birkett v James at p. 329 and by Lord Diplock and Lord Fraser (dissenting in the result) in Bremer Vulcan pp. 984-5 and 990 respectively. Why should a defendant apply to court to make the plaintiff get on with the action when that would be contrary to his interests? That reasoning appears to be equally applicable in Scotland.

(6) There are perhaps two further separate aspects to a consideration of how the defendant's conduct is material to the exercise of the discretion to strike out. One is the question of whether the defendant, by his words or conduct has caused, or contributed to or agreed to the delay. In such a case the plaintiff's action will rarely be dismissed; in Allen, the case which the court did not strike out was one where the delay originated from the defendant's request for more time to serve his defence. The second question is as to the effect of any post delay conduct by the defendant in proceeding with the action. It was decided by the House of Lords in Roebuck v Mungovin that conduct by the defendant which induced the plaintiff to incur further expense in the action was not an absolute bar to the action being struck out on the grounds of the plaintiff's prior delay, but was a relevant factor to be taken into account in the exercise of the discretion and was to be given such weight as was appropriate in the circumstances.

(7) The question whether the plaintiff has an alternative remedy against his solicitor who was responsible for the delay is irrelevant to the question of whether to dismiss a claim for want of prosecution: see Birkett v James per Lord Diplock at p. 324 and per Lord Edmund-Davies at pp. 335-6 and see also Bremer Vulcan per Lord Diplock at p. 985.

[51] In para [23] of her Opinion in Tonner, Lady Smith identifies the vulnerable position of pursuers in actions which are liable to be dismissed for want of prosecution, if there is held to be such a power. She regards it as highly doubtful whether they would have a claim against their solicitors for negligence, since the actions of their solicitors would be judged against the ordinary standards of competence at the time and, prior to Newman at least, no ordinarily competent solicitor would have considered that failing to progress an action would entail a risk of his client's right of action being lost. The issue in that case arose in circumstances where the action remained sisted for a long period and Lady Smith's remarks are directed to the unforeseen consequences of leaving the action sisted for a lengthy period; but I do not consider that any important distinction arises from that difference. The exercise of a power to dismiss for delay in a case such as the present could, therefore, result in hardship to the pursuer. It would seem odd that the court should ignore this hardship, or more generally the availability of an alternative remedy, in considering how to exercise its discretion.

[52] These remarks raise two separate points. The first is whether the pursuer would have a claim against the solicitor in negligence. Every case would have to be addressed on its own facts, of course, but in principle I do not share the concerns thus expressed. The solicitor's duty to his client is well known. It is to exercise all reasonable care and diligence. If an action is dismissed for delay, it is axiomatic that there has been a failure to progress the action with sufficient diligence. If, in a question between solicitor and client, that failure can be attributed to the solicitor, breach of duty will be established. The foreseeability of the action being lost as a result of that breach may raise interesting questions, but I find it difficult to conceive that a solicitor sued in such a case could realistically assert that it was not reasonably foreseeable that the prospects of success might be reduced by delay (if only by reason of the difficulties of proving the case increasing with the passage of time) and might even be lost, since there are circumstances where the court has power even under the Rules of Court to dismiss an action in the case of a failure to take certain steps within time. Certainly in Allen there appears to have been an assumption that the plaintiff whose action was dismissed would have a valid claim against the solicitor who was responsible for the delay. But even if this were not the case, I do not see why this should be relevant. The enquiry under s. 19A of the Prescription and Limitation (Scotland) Act 1973 does involve a consideration of the alternative remedies open to the pursuer. But the section points the court in that direction, since the court is required to weigh up the equities between the parties: see e.g. Forsyth v A.F. Stoddard & Co. Ltd. 1985 SLT 51. By contrast, where the court is asked to exercise its discretion to dismiss a claim for want of prosecution on the grounds that delay of a particular character has caused prejudice to the defender or to the prospects of a fair trial, the focus of the enquiry is on the delay and the prejudice to the defender or the prospects of a fair trial. I therefore do not see any oddity in there being a different approach to the exercise of the two very different jurisdictions. Lord Diplock in Birkett v James no doubt had the English equivalent of s. 19A well in mind when coming to the view, contrary to his initial opinion in Allen, that the availability to the plaintiff of an alternative remedy was irrelevant to the dismissal of an action for want of prosecution (though it was relevant in an application to extend time under the statutory provisions equivalent to s. 19A: see e.g. Thompson v Brown [1981] 1 WLR 744).

[53] Lady Smith then goes on, in para. [24], to point out that the Rules of Court provide for the termination of an action against the will of the pursuer only in very clearly defined circumstances. She points out that the test set out in Birkett v James is "indicative of a recognition the draconian nature of this power is such that, if it exists, there would need to be fetters on, or, at least, guidelines regarding its exercise." Since there are no Rules of Court setting out either the power, or the fetters or the guidelines, the defenders in the case before her were "challenging the court to declare its existence and extent by way of judicial pronouncement". I do not quarrel with that analysis, though the borrowing from Diplock LJ of the epithet "draconian", and the use of the verb "challenging", may tend to suggest an initial hostility of the court to arguments presented to it. I cannot believe that Lady Smith intended to give that impression. In truth, the defenders are doing no more than parties habitually do in these courts, namely seeking the assistance of the court in an area not directly covered by the Rules of Court or previous binding authority, and putting forward submissions both as to the existence and ambit of the alleged power which they urge the court to exercise in their favour.

[54] As is plain from my previous analysis of the nature of the power as exercised in England, I agree with Lady Smith's reminder that the "extreme and draconian" power to put a stop to ongoing litigation cannot be categorised as a power that concerns management and regulation of the court's ongoing business. It is not merely incidental to its procedural powers. It is, as I have indicated, an incident of an inherent power which the court possesses to control abuse of proceedings before it. [55] Lady Smith then goes on in paras. [26] onwards to consider the authorities cited to her. I have already expressed my views on many of them. I would only wish to add the following remarks. The passage from Erskine cited is in general terms. It cannot be seen as expressing approval or disapproval of the particular power now contended for, namely a power to dismiss for want of prosecution. No consideration was given to such matters at the time. But in its general tenor it does, to my mind, give support for the general power to support the jurisdiction of the court and, as an incident thereof, to prevent its abuse. I differ from Lady Smith in that I consider that the remarks of the Lord Justice General in Hall v Associated Newspapers Ltd. are directly in point, are supportive of the general power of which the power to dismiss for want of prosecution is but an incident, and, what is more, are part of the ratio of the decision, since the existence of the power to commit for contempt in those circumstances was directly in issue. Catterson v Davidson did not involve any consideration of whether there was any inherent power to dismiss for want of prosecution. The decision of the Sheriff Principal was that there had been no default in the pursuer obtempering an order of the sheriff so as to give rise to the default powers in Rule 16.2(1) of the Ordinary Cause Rules 1993. His obiter remarks that rules of court in Scotland did not permit a judge to bring an action to an end on account of the pursuer's failure, save in the case of default, are plainly correct but of little relevance to the present problem. I note that his reference to the position being different in England appears to be a reference to the Civil Procedure Rules newly introduced there rather than to the inherent jurisdiction identified in Allen and in Birkett v James. As to those two English cases, I agree that they do not inform as to the existence or otherwise of the specific power, as part of the law of Scotland, to dismiss for want of prosecution: but they, and the cases which followed them (to which I have referred), do identify the necessity for and the existence of the general inherent power of all courts, not merely those of England, to prevent abuse of proceedings before them; and they show how that general power has been applied in England to deal with a specific problem that had arisen there. It is, of course, a matter for Scots law and practice to determine whether there is room for a similar application of that power to problems of delay in proceedings before the Scots courts. It is not, to my mind, relevant to this question to note that the English decisions were reached against a background of great frustration on the part of the court - there will always be specific circumstances in the background to the development of any innovation on existing practice - or that matters have moved on in England with the CPR. I note Lady Smith's discussion of the "sleeping dogs" issue, and her conclusion that a defender cannot just lie low until such time as the action has been so delayed that it will be dismissed. For my part I would be content to follow the decision of the House of Lords in Birkett v James on this point. Even if the point remained unresolved and were arguable either way, I would not regard such uncertainty as supporting the idea that the court does not have the jurisdiction to strike out. In any case where the court is called upon to exercise a discretion - whether to grant interdict, sist an action, or award expenses, etc. - there is the possibility of an argument as to how certain matters are to be taken into account in coming to the final decision; but the fact that the law may, for a time, be unresolved does not cast doubt upon the existence of the discretion.

[56] The issue seems to come down, ultimately, to the question of whether the absence of a power in the Rules of Court is determinative of the absence of an inherent power. My difference with the very careful analysis in Tonner lies in the analysis of the nature of the power. I take as my starting point the existence of an inherent jurisdiction to prevent the court's processes being abused, of which the power to dismiss is simply an incident. If this is correct, then the arguments about the difficulties of grafting an English procedure onto Scots procedural law, and the absence of any applicable Rule of Court, seem to me to become somewhat less powerful.

Article 6 of the Convention
[57] In light of my decision that the court has an inherent jurisdiction to prevent abuse of its own processes, which can be exercised by putting a stop to proceedings where the pursuer has been guilty of such inordinate and inexcusable delay as to cause material prejudice to the defender or to the possibility of a fair trial, I shall state my conclusions on the Article 6(1) point more shortly than I might otherwise have done. It is well established by the authorities to which I was referred that the Article is concerned with delays attributable to the state. The right to a hearing within a reasonable time is a stand-alone right. A victim of a breach of that right need not show prejudice. But it is also established by the authorities concerning the Human Rights Act 1998, though a different result is reached by those concerning the Scotland Act 1998, that the remedy for a breach by the state of the convention right to a trial within a reasonable time will not usually be decree of dismissal or absolvitor. If a fair trial is still possible, it will only be in the exceptional case that the court will put a stop to the proceedings on the grounds of such delay beyond a reasonable time. Since this part of the case has been argued under the Human Rights Act, I should follow the authorities decided under that Act, with which, in any case, I respectfully agree. The corollary, which I consider is also accepted in the authorities, is that if the breach of the reasonable time obligation has meant that a fair trial is no longer possible, then the court will be more ready to stop the proceedings, though still will not necessarily do so. I reject the argument that the delay to date has been delay at the hand of the court, and therefore of a public authority. No breach of a convention right has, therefore, occurred to date. Since, in the absence of prejudice to the possibility of a fair trial, there is no right not to have a trial after the expiry of a reasonable time, the court, as a public authority, will not be acting unlawfully if it allows a trial to proceed in such circumstances despite such delay. But the position is different if the delay has put the possibility of a fair trial in danger. The court would then be acting unlawfully if it permitted the trial to proceed. I consider that the passages in the speeches of Lord Nicholls and Lord Hope in Attorney General's Reference (No. 2 of 2001) to which I have referred show that the action of the court in permitting a trial, in circumstances where by reason of delay beyond a reasonable time a fair trial is no longer possible, would itself be an unlawful act, separate and distinct from any preceding breach of the reasonable time guarantee by other public authorities which has resulted in those circumstances. In para. [38] Lord Nicholls rejected the proposition that the court would be acting unlawfully by proceeding to hold a trial after the expiry of a reasonable time; but it does not follow from this that he would also have rejected a similar proposition if one added the fact that the expiry of a reasonable time had prejudiced the possibility of a fair trial. Nor does the fact that Lord Hope dissented in that case affect the force of the discussion in paras. [87]-[90] - his dissent was on the question whether one needed more than breach of the reasonable time guarantee. If permitting a trial to proceed (in circumstances where, because of the delay, the possibility of a fair trial is prejudiced) is in itself a separate breach of the convention rights of one or both of the parties, it must be a breach regardless of whether or not there was in fact any other preceding breach of the reasonable time guarantee by other public authorities. Accordingly, if it could be shown that, without his own fault, the defender had been denied his right to a hearing within a reasonable time, albeit the cause was the pursuers' conduct rather than that of the state, I consider that the court could not lawfully allow a hearing to take place in the future if the consequence of that delay beyond a reasonable time was that there could not be a fair hearing of the issues in dispute between the parties. In those circumstances I do not think that it would be necessary to read down the Rules of Court to make them Human Rights compliant - the court could simply grant decree of dismissal or absolvitor as best met the circumstances of the case.

[58] All counsel were prepared to accept that, if the defenders' arguments on Article 6 succeeded in principle, the court should approach the question of prejudice and delay in the like manner as it would if it were applying the test in Birkett v James. I am not sure that this is necessarily correct in all cases. A number of differences come to mind. It is not clear to me that the threshold for reasonable time or fairness would be the same. Nor is it clear how prejudice other than to the possibility of a fair trial should impact upon the appropriate remedy for breach of the Article 6 obligation. But for present purposes it was not contended on the part of either defender that they would be any worse off in seeking to put a stop to further proceedings under the Birkett v James test. I propose therefore to apply that test to my consideration of the arguments whether under the inherent jurisdiction or under Article 6 of the Convention.

Delay/ prejudice
[59] In the present case it is, to my mind, beyond argument that there has been both inordinate and inexcusable delay on the part of the pursuers in progressing the claim against these defenders. I accept that the action was commenced within time and I leave out of account any idea that the two actions should in some way be treated as one. They are distinct actions and, subject to the questions of lis pendens, the pursuers are entitled both to bring the current action and to be judged on their conduct in that action. However, the action was commenced in 1996, 10 years after the accident. That seems to me to place an onus on the pursuers to pursue the action with greater diligence than might otherwise have been the case. Even by ordinary standards they failed pitifully. The dispute with the insurers and the MIB, which had so bedevilled the first action, seems to have been responsible for almost total inaction in the second action. I accept that it was the first defender who originally applied to have the case sisted for legal aid. But that was granted within about 9 months and I can, I think, infer that the pursuers' solicitors would have been informed of this. Even if they were not told, they could and should have asked. The duty to progress an action lies on the pursuer. If the action is sisted and nothing appears to be happening, the pursuer is the party with the interest in applying to recall the sist. In the event, more than 5 years passed after the first defender obtained legal aid before the sist was recalled. It is worth noting that this was now 17 years after the accident. In reality the proof will not be heard until at least 20 years after the accident. Even ignoring the time since the accident (as one must, given that the pursuers have a statutory right to bring proceedings at any time up to the expiry of the limitation period), and focusing only on the period since the action was commenced, the delay means that the proof will not be heard until at the earliest 10 years after the action commenced. By any standards that delay is inordinate. It is also, to my mind, inexcusable. The explanation - and it was not put forward as an excuse - appears to be that the pursuers' then solicitors were concerned about the position of the insurers and MIB. I have not, of course, heard any explanation from the solicitors themselves, but it is difficult to understand how any such problems could have led them to allow the action to drift for so long. Given the extended period of limitation and the late start to the action, there was clearly an obligation on the pursuers to get on with it. They did not do so. But I do not base my conclusion on that. Even without the late start the delay was inexplicable. I was not given any explanation by counsel as to why I should not regard the delay as inexcusable as well as inordinate; and, apart from his reliance on the fact that it was the first defender who first sisted the action (a point with which I have dealt), I did not understand Mr Campbell seriously to contend otherwise.

[60] I should emphasise that I do not know whether the fault lies with the pursuers or with their former solicitors, and I do not ask, though I note that the pursuers have commenced proceedings against their former solicitors. In the view I take of the matter, that claim and the chances of success are irrelevant to my decision.

[61] The next question to address, therefore, is whether the delay has put at risk the possibility of a fair trial of the issues between the parties or has otherwise caused serious prejudice to the defenders. In terms of the evidential difficulties that will be faced if there is a proof 20 years or more after the accident, there is force in the argument, advanced by Mr Campbell, that the lack of evidence is not a result of the delay. Eye-witness evidence from those in the car was never going to be available. The tyres were apparently disposed of after the FAI but before the expiry of the limitation period. No physical evidence has been lost and no witnesses have died or become unavailable since the relevant delay began. Further, much has been preserved, in that transcripts are available of the evidence given at the FAI, and those transcripts can clearly be adduced in evidence at the proof. But I do not consider that these matters, important as they are, fully answer the point. The FAI did not address the same questions as are raised in this action. Different questions might have been raised. If those witnesses who gave evidence in the FAI are now called to give evidence in this action, the quality of their evidence will inevitably be impaired by passage of time. They may not be able to give reliable evidence of what occurred beyond referring back to what they said. It may be argued that this would have been the case anyway if the proof had been heard 5 years earlier. That may be, but no one can know. The second defender will be a relevant witness, but how reliable will his evidence be at this far removed? His recollection will certainly have dimmed further. As was pointed out by Lord Drummond Young in AS v Sister Bernard Mary Murray (unreported 2 June 2005) at paras. [21]-[22], under reference to the decision of the High Court of Australia in Brisbane Regional Health Authority v Taylor, [1996] 186 CLR 541, delay can lead to deterioration in the quality of evidence which is not recognisable even by the parties. Similarly, prejudice may exist without the parties or anybody else realising that it exists. Inordinate delay of the magnitude encountered in this case, coming as it does on top of a delayed (albeit legitimate) start to the action, is inherently likely to increase the risk that there will not be a fair hearing of the issues between the parties. This risk is exacerbated, in my opinion, by the amendments introduced as recently as May 2005. Until then there were no averments of prior speeding by Mr MacRae and no averments that he knew or ought to have known about the handling characteristics of the car caused by the differential tyre pressures. This will involve some interaction between the case of the first defender and that of the second defender. It is probably not possible to say whether questions raised by these averments could have been investigated in 1996 or, say, 1999, had they been included in the Summons from the start and the action proceeded without delay, nor whether evidence from such witnesses as might have been available could have thrown any light on the matter. What is clear, to my mind, is that the possibility of pursuing such lines and of obtaining any reliable evidence from witnesses is reduced.

[62] In addition, I consider that it is relevant, particularly in the case of defenders who are individuals, to have regard to their personal circumstances. No personal liability is sought to be established against the first defender, but she will be subjected for an extended period to the stress of the case, and the memory of the distressing events giving rise to it, hanging over her. The second defender is sued personally. He is probably uninsured, since the car was not being driven by the driver to whom it was hired. To have this case hanging over him so long after the event, at an advanced age and having long retired from the business, and with so much at stake in terms of potential liability, is, to my mind, intolerable.

[63] For these reasons I consider that this is a case where I should exercise my discretion to dismiss the case against each of the defenders and I do so by sustaining the third and fifth pleas-in-law for the first defender and the seventh and eighth pleas-in-law for the second defender.