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Cite as: [2006] ScotCS CSOH_21, [2006] CSOH 21

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OUTER HOUSE, COURT OF SESSION

[2006] CSOH 21

OPINION OF LADY PATON

in the cause

VINCENT WALLACE

Pursuer;

against

(FIRST) KELTBRAY PLANT LIMITED and (SECOND) TCM GROUNDWORKS LIMITED

Defenders:

________________

Pursuer: Leighton, Advocate; Drummond Miller, W.S.

Defenders: No appearance

7 February 2006

New personal injuries rules: decree in absence for £5 million

[1] In this action of damages for personal injuries, the pursuer avers that he was seriously injured while working as an asbestos remover at the site of the old Royal Infirmary, Edinburgh. He seeks damages of £5 million from the first defenders, as his employers and the employers of his foreman at the site, and from the second defenders, averred to be the employers of the driver blamed for the accident. The second defenders have entered appearance and lodged defences. The first defenders have not. The pursuer seeks decree in absence against the first defenders.

[2 ] The pursuer's motion for decree in absence was intimated to the second defenders as parties in the process in terms of rule 23.3. They did not oppose the motion. However, the pursuer's agents did not intimate the motion to the first defenders in person for two reasons. First, as the first defenders were not parties in the process, the rules did not require intimation to them. Secondly, the pursuer's agents took the view that the first defenders had received ample notice by service of the summons upon them.

The pleadings

[3 ] The action was raised in the Court of Session after 1 April 2003. Accordingly new rules of court apply, namely Chapter 43 of the Rules of the Court of Session, as substituted by Act of Sederunt (Rules of the Court of Session Amendment No.2) (Personal Injuries Actions) 2002, S.S.I. 2002 No.570, and Act of Sederunt (Rules of the Court of Session Amendment No.4) (Personal Injuries Actions) 2004, S.S.I. 2002 No.291.

[4 ] In compliance with rule 43.2(1) and Form 43.2-A, the pursuer's summons is concise. Paragraph 4 of Form 43.2-A instructs practitioners to -

"State briefly the facts necessary to establish the claim."

The pursuer does so by averring:

"4. On or around 2^nd November 2004 the pursuer was working in the course of his employment as an asbestos remover with the first defenders at the site of the old Royal Infirmary of Edinburgh, 1 Lauriston Place, Edinburgh. The pursuer was instructed to remove bags full of asbestos and debris from the upper floor. The bags were to be loaded into a scissor lift positioned by the window on the outside of the building at the rear of Q19 Building and then brought down to the ground floor. The scissor lift was on hire to the first defenders. He was instructed to start the lift. He pushed the start button and it did not start. The battery was flat. The lift had in fact had this problem for some time and a practice had developed whereby men used a 'Bobcat', which is a type of motorised mini digger, to jumpstart the lift. Matt Stow who was a foreman employed by the first defenders instructed the pursuer to jump-start the lift. There were two pieces of wire under the lift which had clearly been placed there to enable it to be jump-started. Matt Stow had used the bobcat to jump start the lift on a number of occasions prior to this date as had many of the other men. Willie Fraser who was employed by the second defenders obtained the Bobcat and started to reverse this to the area of the lift. The pursuer was standing beside the lift to enable the jump leads to be attached to the bobcat. The back of the bobcat was lifted up to enable the battery to be accessed. This impaired Mr Fraser's view as he reversed. Mr Fraser reversed the vehicle blindly and trapped the pursuer between the machine and a concrete pillar. The pursuer was aware of the bobcat moving quickly on full reverse and had tried to get out of the way prior to impact. Mr Fraser had no certificate of competence to enable him to operate the Bobcat. Following the accident the scissor lift was replaced".

[5 ] Paragraph 6 of Form 43.2-A provides -

"State whether claim based on fault at common law or breach of statutory duty; if breach of statutory duty, state provision of enactment."

In compliance with that paragraph, the pursuer avers:

"6. The pursuer's claim against the defenders is based on common law, the Provision and Use of Work Equipment Regulations 1998."

Also in compliance with the new rules of court, there are no pleas-in-law. Thus the summons adopts the succinct approach advocated by the new rules, although it is arguable that, in terms of paragraph 6 of Form 43.2-A, the particular provision(s) relied upon in the 1998 regulations should be specified.

Submissions for the pursuer

[6 ] Counsel for the pursuer submitted that decree in absence for the sum of £5 million should be granted against the first defenders, for the following reasons.

[7 ] Proof of service of the summons on the first defenders on 28 October 2005 was constituted by (i) a Royal Mail recorded delivery computer print-out, confirming that mail with the bar-code DP820582117GB had been delivered before 14.33 on 28/10/05; and (ii) a certificate of service by post (Form 16.4) by the pursuer's agents, confirming that the recorded delivery envelope with that particular bar-code (as evidenced by a Royal Mail receipt attached) had been addressed to the first defenders at their registered office at Wentworth House, Dormay Street, London SW18 1EY.

[8 ] Counsel contended that the summons need not necessarily disclose a relevant and specific case against the first defenders: Cadbury Brothers Ltd v Thomas Mabon Ltd, 1962 S.L.T.(Sh.Ct.) 28; United Dominions Trust Ltd v McDowell, 1984 S.L.T.(Sh.Ct.) 10. The terms of rule 19.1 of the Rules of the Court of Session were mandatory (in contrast with the discretionary terms of the Sheriff Court Ordinary Cause rule 7.2). The court was obliged to grant decree for £5 million, provided the court was satisfied that the summons had been properly served, that there was jurisdiction, and that the action was not incompetent: United Dominions Trust Ltd v McDowell, cit.sup; Terry v Murray, 1947 S.C.10.

[9 ] A search in the company register had shown that the first defenders were still in existence. There was no information suggesting that they were in difficulties, financial or otherwise. It was accepted that decree in absence might be refused where there would be prejudice to a co-defender: Morrison v Somerville (1860) 22 D 1082; Symington Son & Co Ltd v Larne Shipbuilding Co Ltd, 1921 2 S.L.T.32. However, the motion had been intimated to the second defenders' agents, who did not oppose it. Moreover a cursory examination of the pleadings revealed no prejudice to the second defenders in the event of decree in absence being granted against the first defenders. The second defenders' position was that the first defenders were employers pro hac vice of the driver blamed for the accident, and that if anyone was liable to the pursuer, it was the first defenders.

[10 ] Counsel accepted that a decree in absence could be recalled in certain circumstances, including mistake or oversight on the part of defenders. He stated that if the first defenders were known to have solicitors acting for them, the present motion would have been intimated to those solicitors. However no intimation of the motion had been made to the first defenders in person, on the view that they had already received adequate intimation by service of the summons.

[11 ] In the course of submissions, reference was made to the Rules of the Court of Session, rules 19.1, 23.3 and 43.3; Sheriff Court Ordinary Cause Rule 7.2; Macphail, Sheriff Court Practice, paragraphs 7.05, 7.09 and 7.13; Cadbury Brothers Ltd v Thomas Mabon Ltd, 1962 S.L.T. (Sh. Ct.) 28; United Dominions Trust Ltd v McDowell, 1984 S.L.T. (Sh. Ct.) 10; Morrison v Somerville, (1860) 22 D. 1082; Symington Son & Co Ltd v Larne Shipbuilding Co Ltd, 1921 2 S.L.T. 32; Macfadyen et al, Court of Session Practice, p.K/4 paragraphs [4] to [11]; Hamilton Leasing Ltd v Clark, 1974 S.L.T. (Sh. Ct.) 95; Royal Bank of Scotland v McKerracher, 1968 S.L.T. (Sh. Ct.) 77; Terry v Murray, 1947 S.C. 10; Semple Cochrane plc v Hughes, 2001 SLT 1121; and Maclaren, Court of Session Practice, page 369 et seq.

Discussion

[12] At page K/5 paragraph [11] of Macfadyen et al, Court of Session Practice, it is noted that:

"A decree in absence cannot be reclaimed. However, within seven days, a defender may move the court to recall the decree and allow defences to be lodged. The court is bound to grant that motion if the defender has tendered defences and paid a specified sum to the pursuer. A motion for recall may be allowed late, at least in exceptional circumstances, under the general power of the court to grant relief from the consequences of failure to comply with a time limit. Where there has been a straightforward mistake by a party or his agent in failing to enter appearance or lodge defences on time, it is difficult to deny him a remedy where the interests of justice demand that the action be properly contested. Because of this, the prudent and experienced agent for the pursuer will refrain from seeking a decree in absence if he is aware that the defender intends to resist the claim. Such an agent will at least intimate his intention to seek a decree in absence even if such a courtesy is not demanded by the rules ...

If recall is not granted, a defender who wishes to have a decree in absence set aside will require to proceed by way of reduction and suspension ..."

In paragraph [4] it is suggested that:

"[The court] may also at least delay the granting of any decree where there has clearly been an oversight by the defender's agents ..."

[13 ] In the present case, the pursuer seeks decree for a considerable sum (£5 million). His claim is not a simple demand for payment of a debt said to be due. Rather it is an illiquid claim for damages, dependent upon establishing negligence on the part of the first defenders. Moreover, as a consequence of the new abbreviated personal injuries pleadings complying with Chapter 43 of the Rules of the Court of Session, the summons contains no detailed averments outlining precisely how the first defenders are said to have been negligent, although counsel for the pursuer indicated that at least one ground of fault was unsafe system at common law. Equally, as a consequence of the new abbreviated pleadings, the summons does not contain details explaining how the damages are calculated, as in terms of rules 43.6(1)(b)(iv), 43.8 and Form 43.2-A paragraph 5, all that is required in the summons is a brief statement of "the injuries suffered and the heads of claim" (a requirement fulfilled by statement 5 of the summons). More detailed information relating to quantum will be provided at a later stage in the Valuation of Claim supported by productions.

[14 ] In the circumstances, it is difficult to avoid the suspicion that the first defenders' failure to lodge defences in this case has arisen from an oversight, or a failure in communication or administration. If decree in absence were to be granted, the first defenders might seek recall or reduction, with inevitable delay and expense for all concerned: cf. the observations in Semple Cochrane plc v Hughes, 2001 S.L.T.1121. Accordingly, while accepting that many of the pursuer's submissions were well-founded, I am reluctant to grant the pursuer's motion without some further intimation to the first defenders in person, "even if such a courtesy is not demanded by the rules": Court of Session Practice, cit. sup. paragraph [11]. I have in mind a recorded delivery letter to the first defenders, referring to and enclosing (i) a copy of the summons; (ii) the terms of the motion for decree in absence as enrolled; and (iii) a copy of this judgement. The letter should explain clearly that, as no defences have been lodged by the first defenders in response to the summons, the pursuer has made an application to the court for decree in absence in the sum of £5 million. The letter should expressly warn the first defenders that if, by the end of a two week period commencing on the date of receipt of the recorded delivery letter to them, they have taken no formal steps to defend the action, the court is minded to grant decree in absence against them for £5 million.

[15 ] On that basis, I shall continue the pursuer's motion to a date to be fixed.