Scottish Court of Session Decisions

"On behalf of the pursuers, in respect that the Summons in this case was signetted on 13 September 2006, that service required to be effected in England on the defenders, that service was duly made at a place of business of the defenders, namely 12 Parkgate Road, London SW11 4NN on 16 September 2006 by an English Process Server, Darren Adaway according to his Affidavit of Service sworn on 18 September 2006, that the date of Citation as shown on Form 13.7 which was served with the Summons incorrectly shows the service date of 15 September 2006 which is a clerical error and further that no witness accompanied Mr Adaway when service was effected as that is not in accordance with the usual practice for serving documents in England and Wales as referred to in the Form 16.3 duly signed by Mr Adaway and dated 6 December 2006, to exercise the Court's dispensing power in terms of Rule of Court 2.1(1) and relieve the pursuers from the failure to comply with Rules 13.7 and 16.3(2) and allow the Summons to call."

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

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

Mr McNeill then referred to the commentary on Rule 2.1 which appears in the Parliament House Book and to the decision of Lord Macfadyen in Colley v Celtic Pacific Ship Management (Overseas) Ltd supra. In that case, Lord Macfadyen had granted relief, in terms of Rule 2.1, in respect of failure to serve a citation together with the Summons, as is required by Rule 13.7(1)(a). Mr McNeill took the decision as authority for the competency of his present application, in that the power conferred by Rule 2.1 was sufficient to allow the court to grant relief from the consequences of a failure to comply with the requirements for good service which are imposed by the Rules.

"... one finds the meaning of the proviso by paying attention to the words 'not being wilful non-observance of' the Rules. I think that the dispensing power was meant to enable the Court to do justice" (Dalgety' Trs v Drummond 1938 SC 709 at 715);

and

"I doubt greatly whether the Court ... is precluded by any Act of Sederunt from doing what it thinks according to justice and equity in any individual case before it" (Boyd, Gilmour & Co v Glasgow & South Western Railway Co (1888) 16 R 104 at 109).

All courts, I imagine, seek to do justice. The difficulty lies in knowing how best to achieve this. Rules of Court are intended to facilitate the doing of justice. In this regard I would respectfully associate myself with what was said by Lord Carloway in Semple Cochrane Plc v Hughes 2001 SLT 1121 at 1124E:

"The rules of court are devised to regulate litigation and, in that regard, to assist both the parties and the court in arriving at a just conclusion in accordance with the law as expeditiously as is reasonable in all the circumstances. As a general principle, parties must, of course, abide by the rules and the sanctions which attach to any failure to do so."

However, Rule of Court 2.1 is a Rule like any other, to be applied according to its terms. Here, I would again respectfully associate myself with what was said by Lord Carloway in Cochrane Plc v Hughes supra. The Rule is not qualified by any words such as "exceptional or extraordinary circumstances", and there is no reason why they should be implied. The Rule allows the court to relieve a party of the consequences of a failure which is due to mistake, oversight or other excusable cause. Mr Reid, rightly in my opinion, made little of the error in the date of the citation. Again rightly, he attached more significance to the absence of a witness to service and the consequential omission of any reference to a witness in the Form 13.7. However, in my opinion, the failure here is excusable. It was not wilful. It has not resulted in any procedural prejudice to the defenders, notwithstanding that I recognise that as a result of my granting relief, the defenders will face a substantial claim to which, as matters presently stand, they appear to have a good answer in the form of a plea of prescription. I consider there to be force in Mr Reid's observations that the court was provided with very limited information as to the precise circumstances which led the process server to assume that it was sufficient for him to follow his usual practice when serving a writ. He may have overlooked or even disobeyed express instructions from the Scottish Messengers at Arms or the instructing solicitors may have failed to give instructions which should have been given in the circumstances. I am not, however, satisfied that I require more detailed information. A mistake was made, it can be assumed that it was made by a professional person and no doubt professional persons should not make mistakes within the field of their particular competence. Acknowledging that, as Mr McNeill submitted, this was not a case where nothing was done. An authorised person was instructed to serve the Summons. He took such steps to do so as would have been sufficient in his own jurisdiction. What he did took the form of a formal act. As a matter of fact, it put the defenders on notice of the claim being made against them. It appears to me that even taking the most adverse view of what occurred from the point of view of the pursuers, I cannot regard their failures as inexcusable. I shall accordingly grant the relief which is sought in the pursuers' motion.