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Cite as: [2008] ScotCS CSOH_151, [2008] CSOH 151

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OUTER HOUSE, COURT OF SESSION

[2008] CSOH ~~NUMBER~~151

OPINION OF MORAG WISE, Q.C.

(Sitting as a Temporary Judge)

in the cause

(FIRST) HUGH CAMERON AND (SECOND) ALICE MARY STEUART CAMERON

Pursuers;

against

HUGHES DOWDALL

Defenders:

________________

Pursuers: Ellis, Q.C.; Simpson & Marwick

Defenders: Motion, Solicitor Advocate; bto

28 October 2008

Introduction

[1] In this action, the pursuers claim damages in respect of the alleged professional negligence of a firm of solicitors. The circumstances giving rise to the claim began in December 1988. The first pursuer was a director of, and both pursuers were shareholders in, a company known as Alumex Lighting Ltd. That company was to be purchased by Pillar Electrical Plc. As part of the sale agreement, the first pursuer and other directors were to be retained as employees. The pursuers instructed Mr Brian Hughes, now deceased, then a partner of the defender firm to act on their behalf. Mr Hughes was also instructed by the other directors and shareholders of the company. A Mr Smith, the Managing Director of Alumex, gave instructions to Mr Hughes on behalf of the pursuers. He had authority to do so under a power of attorney. In short, the pursuers allege that, contrary to instructions, the defenders negligently omitted to incorporate certain terms into the sale and purchase agreement and the related contract of service.

[2] The contract giving rise to the claim was concluded on 11 July 1989. The merits of the case relate to the omission in the agreement of (a) a clause restricting the manner in which the purchasers could run the company after their acquisition and during the "earn out" period, given that some of the purchase price was dependent on future profits and (b) an option extension period in the first pursuer's contract of service with the purchasers.

[3] The case called before me on 26 September 2008 for a hearing on the defenders' minute (as adjusted) for dismissal for want of prosecution of the action and the pursuers' answers thereto.

Submissions for Defenders

[4] Mr Motion, solicitor advocate for the defenders, based his argument largely on a detailed chronology that had been prepared by the pursuers' advisors for the purpose of the hearing (No. 35/1-4). A claim had been intimated on behalf of the pursuers on 18 September 1990. A summons was served on 7 July 1994 and the case was thereafter sisted for the second pursuer's legal aid application. The sist was recalled in April 1996 when the court was advised that the pursuers' solicitors had withdrawn from acting. The interlocutors disclose sundry procedure thereafter, including continuations for adjustment of the pleadings. The Record closed on 27 November 1996. A Procedure Roll discussion was fixed for 9 May 1997, which was discharged on the pursuers' motion and the cause again sisted for legal aid. In effect it was said that on that date the court procedure in the case terminated. Although the interlocutors disclose a motion to recall the sist in 1998, that was an application by the pursuers' previous agent seeking to recover expenses from the legal aid fund. While the motion was ultimately granted in 2000, I was advised that neither of the parties was aware of that step in procedure having taken place. Further, both parties had been proceeding from 1997 on the basis that the action was sisted. As it transpires, the cause was not sisted of new after the aforementioned motion to recall the sist, but it is clear that there are no interlocutors of procedural activity in a meaningful sense from 9 May 1997.

[5] By August 1997, the pursuers' current solicitor, Mr Kemp, formerly of Burnside Kemp Fraser and now of Messrs Simpson & Marwick, was acting for them. In August 1997, that solicitor intimated to the defenders' agents that they were waiting for an expert opinion in relation to the merits of the action. The last correspondence received by the defenders from the pursuers' agents was on 9 February 2000. Legal Aid was ultimately granted on 21 August 2000.

[6] Mr Hughes, the solicitor who had acted in the transaction giving rise to the claim, died on 14 February 2002. Mr Motion argued that if the action had been prosecuted efficiently from 1994 onwards, it would, on any view, have reached a conclusion by that date.

[7] Mr Motion conceded, quite properly in my view, that despite the terms of paragraph 17 of his minute, he could not suggest that the court should take into consideration the pursuers' prospects of success in deciding whether to dismiss the action for want of prosecution. He argued, however, that I should take into account the fact that the case will not, if allowed to proceed, go straight to proof, as the pursuers will require to amend their pleadings and there is likely to be a Procedure Roll discussion. Hence on any view, there will be further delay if the case is allowed to proceed.

[8] Under reference to the decision in Tonner v Reiach and Hall 2008 S.C. 1, Mr Motion accepted that in order to succeed in his minute, he required to show (i) that there had been both inordinate and inexcusable delay and (ii) that there was an "added element of unfairness ... specific to the particular factual context"[Tonner, at paras133 - 137]

[9] The submission in support of dismissal was developed by highlighting various passages in the detailed chronology. In essence, Mr Motion was critical of Mr Cameron's responses to advice that expert opinion would be required. Further, while on 14 April 1993 an opinion was obtained from a Mr Lumsden, solicitor, in relation to the actings of the defenders, it was clear that that opinion did not specifically address the issue of negligence. It was pointed out that the defenders have been consistent in their defence to the claim. There was a period during 1995 when instructions appear to have been given to abandon Mrs Cameron's claim, due to lack of legal aid funding. Those instructions were never followed through as Mrs Cameron changed her mind in early 1996. It was argued that tension appeared to have arisen again between Mr Cameron and his solicitors when they insisted that expert opinions were required. It was clear that there were difficulties with the pursuers' case and these had been highlighted in a note from counsel.

[10] On 2 August 1996 the defenders sent their files in relation to the transaction in question to the pursuers' former solicitors. (I note that these had been requested by November 1995). The chronology also made clear, Mr Motion argued, that an opinion on the merits obtained from a Mr Bennett, solicitor was not favourable to the pursuers' claim and the chronology indicates that Mr Cameron found that difficult to accept. In May 1997, Mrs Cameron's legal aid certificate was withdrawn and the defenders offered to have the case dropped on a no expenses due to or by basis. Following the change of agency in 1997 to the pursuers' current solicitor, both pursuers' legal aid certificates were withdrawn. After legal aid was granted on 24 August 2000, boxes of papers required to be copied and a consultation was fixed which ultimately took place in October 2001. It was at that time that a further note from counsel indicated that an expert view on quantum was required and an approach was made to a firm of Aberdeen accountants. Mr Motion argued that, in light of the fact that delays had taken place because of the difficulties with changes in representation for the pursuers and legal aid difficulties, all the more effort should have been put in by the solicitors from this period onwards. However, he conceded that the need to obtain sanction for experts from the Legal Aid Board could slow the case down. That concession notwithstanding, the position was that even the most difficult case should have been finished by 2003.

[11] It was not until September 2004 that a note from senior counsel was obtained in relation to sanction for the instruction of KPMG accountants, who were ultimately identified as suitable experts on quantum. The accountants were instructed in January 2005 but it is clear from the chronology that there were a number of difficulties and delays involved in the execution of that instruction. Ultimately, the report from KPMG was received by the pursuers' agents in February 2007. A consultation with senior counsel was arranged and that took place in May 2007. Senior counsel advised the pursuers that there would be a requirement to amend the pleadings following the views now obtained on the merits and on quantum. There is mention in the chronology in relation to 12 October 2007 of the possible recalling of the sist but, Mr Motion argued, from May 2007 there was simply no excuse for not pursuing the action.

[12] Mr Motion referred to affidavits that had been lodged on behalf of the pursuers. I was urged not to give much weight to Mr Cameron's affidavit. It was argued that a gloss had been put on the history of the case by Mr Cameron as there was a tension between his affidavit and some of the chronology produced on behalf of the pursuers. In any event, it was argued that Mr Cameron's position from 22 May 2007 onwards is consistent with the defenders' arguments that there was no possible excuse for the delay from that date. Further, Mr Kemp's affidavit did not explain either the delay in copying the boxes of papers which seem to have taken the first half of the year 2001 nor did it explain why there had been no attempt to recall the sist after the consultation in May 2007. I was advised that the pursuers' agents had first initiated action on 14 February 2008 when they indicated they were enrolling a motion to recall the sist. The defenders' response to that was to indicate that they would be lodging the minute for dismissal. On 2 April 2008, the hearing that ultimately took place before me was fixed. There had been some additional delay so that a date suitable to the pursuers' senior counsel could be found. While Mr Motion indicated at first that he also wanted to found on that delay, he suggested that he was doing so "faint-heartedly".

[13] In summary, on the argument that there had been inordinate and inexcusable delay, Mr Motion concluded by indicating that the factors on which I should place the most reliance were the pursuers having had four sets of solicitors, the first pursuer's refusal to accept that the case was not "open and shut", and the instruction of experts on a piecemeal basis. He argued that the activity that must take place to excuse any delay has to be meaningful activity. In this case he stressed that, albeit the chronology indicated that there had been activity, it was not meaningful activity because the issues in the case had not been properly focused by any of the agents representing the pursuers. He suggested that there was no real explanation for the various legal aid applications and that even if the delay was excusable until May 2007, it was inexcusable thereafter and in the context of the whole period, I should conclude that there had been inordinate and inexcusable delay.

[14] If I was satisfied in relation to inordinate and inexcusable delay, Mr Motion argued, there was in this case an added element of unfairness particular to the factual context because of the death of Mr Hughes in 2002. The loss of Mr Hughes' evidence was highly prejudicial to the defenders. As the pursuers will require to amend their pleadings, the defenders will be unable to ask Mr Hughes about that anticipated amendment. There was also reference to Mr Smith to whom the pursuers had given the power of attorney in relation to the negotiation of the contract. Mr Smith cannot be located, although it was accepted that attempts to precognose him as far back as 1997 had been unsuccessful. Mr Motion also made the general point that memories of witnesses diminish over time and that there must be difficulties of leading evidence in this case so long after the event. He concluded by making a motion to grant the first crave of the minute and dismiss the action.

Submissions for the pursuers

[15] Senior counsel for the pursuers' motion was to sustain pleas 1, 3, 4 and 5 of the pursuers' answers to the defenders' minute. He dealt briefly with his plea to the relevancy. In short, the defenders' first plea was one of mora which would normally and more properly be pled as mora taciturnity and acquiescence, which is of course a plea that, if sustained, leads to absolvitor. In short, Mr Ellis argued that there were no averments in the minute that addressed the issue of acquiescence, which is necessary for such a plea. See Assets Co Ltd v Bains Trustees (1904) 6 F. 692 and Somerville v Scottish Ministers 2007 S.C. 140. Mr Motion subsequently accepted that he could not rely on his first plea-in-law and that he was content to have it repelled.

[16] In relation to the substantive argument, referred to as "the Tonner argument", senior counsel agreed that for an action to be dismissed, the delay had to be both inordinate and inexcusable. Further, he agreed that even if inordinate and unreasonable delay was established, the defender must show an added element of unfairness particular to the factual context. He drew attention also to paragraph 130 of Tonner where the court's jurisdiction to dismiss an action for want of prosecution is described as a "draconian power of last resort". He submitted that if I reached the stage of balancing the interests of the parties, it would have to be that the interests of the defenders in bringing the action to an end outweighed those of the pursuers to have their claim determined by the court before the action could be dismissed.

[17] In support of an argument that there had not been inexcusable delay in this case, senior counsel argued that the period of delay must be looked at as a whole as to do otherwise would suggest that a short period of inexcusable delay taints the whole period. That was consistent with paragraph 133 of Tonner.

[18] Much of Mr Ellis' argument focused on the fact that most of the delays in the case had been caused by the way in which the legal aid system had operated in this litigation. If that was accepted, then a dismissal of the action would deny the pursuers a right to a fair trial in terms of Article 6 of the European Convention on Human Rights. By sustaining a Tonner type plea he argued, the court is denying a party of a decision on their civil rights through procedural bar rather than a decision on the merits. Under reference to Airey v Ireland 2 E.H.R.R. 305 and Steel & Morris v United Kingdom 2005 41 E.H.R.R. 22 he submitted that the concept of a fair hearing demands that a litigant is not denied the opportunity to present his case effectively before the court. The nature of a highly complex professional negligence action is such that a party litigant could not properly conduct the case. Accordingly the delays caused by legal aid problems ought not to form the basis for dismissal. If they were, that would deny the pursuers' legitimate access to the court process.

[19] Turning to the chronology, Mr Ellis argued that little, if any, of the delay in the case has been due to the actions or inactions of Mr and Mrs Cameron. Mr Ellis did not seek to persuade me that there had been no inordinate delay, but rather that the delay was excusable. He submitted that the most difficult aspect of the case related to quantum. The damages aspect of the case that related to both pursuers - the "earn out consideration", was the part of the consideration that depended upon the profitability of the business after the takeover. In order to calculate damages in this case, one would first have to calculate what an appropriate "earn out clause" should have contained. Only when that was done, could a further calculation be made as to the difference that would have made to the profit earned. The expert opinions with which there had been so many difficulties were related to this aspect of the case.

[20] It was said that this was not a case in which the action had been raised and sisted with no further procedure. It was accepted that the pursuers would be proposing a minute of amendment and then perhaps a Procedure Roll discussion and ultimately a proof. It was said that the basic averments for the pursuers in relation to the "earn out clause" would not change but would be elaborated by that amendment. It was accepted, however, that other averments required to be removed and that the averments relating to damages were so briefly stated that as the pleadings stood there was inadequate specification of those.

[21] In relation to the chronology and affidavits, Mr Ellis argued that during the periods of the first two sets of solicitors' involvement which covered July 1989 through to May 1996, those periods could not be part of any argument for inexcusable delay because the Law Society had ultimately upheld complaints against both those sets of solicitors. One of the complaints upheld was in respect of delay and failure to progress the action. The pursuers could hardly be held responsible for that. The third set of solicitors, Blackadder Reid Johnston, had acted between May 1996 and July 1997. It was during that period that an unfavourable opinion had been received from Mr Bennett, but there were also difficulties with Mrs Cameron's legal aid certificate. By May 1997, the pursuers had received one favourable opinion (from Mr Lumsden) and one unfavourable opinion (from Mr Bennett) on the merits. I should conclude that it was not unreasonable for the pursuers to seek a further opinion at that stage.

[22] The period that came under the closest scrutiny was that from July 1997 until intimation of the motion to recall the sist in February 2008. It was argued that nearly all of the delays during that period were caused by difficulties of conducting this difficult professional negligence case within the constraints imposed by the Scottish Legal Aid Board. Fresh legal aid applications had been submitted in 1997. While at one stage the Scottish Legal Aid Board indicated that those applications were to be treated as abandoned, they indicated to the pursuers' agents that they would resuscitate the applications if a suitable expert opinion was provided. At that stage a Mr Christie, solicitor, was instructed for an opinion. While that took up some time, the reason was partly the recovery of papers from previous agents and the Law Society. In September 1999, Mr Christie and his colleague, a Mr Napier, provided a joint opinion supportive of the pursuer's case. It was on the strength of the joint opinion that legal aid was eventually granted on 25 August 2000. Senior counsel accepted that there was a delay on the part of agents in copying boxes of documentation and fixing a consultation with senior counsel, that delay resulted in a period of about 10 months being taken up where 2 months might have been reasonable. In late 2001, counsel advised that further views were required from the experts, Mr Christie and Mr Napier. Those views were not provided until June 2002 which led to the lengthy episode relating to the instruction of an expert report from independent accountants. This four and a half year period, from September 2002 to February 2007 was detailed in the affidavit of Mr Kemp (No. 36). Senior counsel accepted that this seemed to be a long delay but was excusable because it could not be said to arise through the fault of either the pursuers or their solicitors. Delay was symptomatic of the general problem of instructing expert reports in a complex case that requires to be litigated on legal aid.

[23] It was accepted that there was something of a delay after the consultation on 22 May 2007, but it was explained that senior counsel was aware that the decision in Tonner v Reiach & Hall was awaited and he argued that it would have been unreasonable to progress matters until the question of the court's power in such cases was clarified. While the decision in Tonner was issued on 12 June 2007, it was accepted that nothing happened over the summer until the October of that year. Such delay as there had been from then until February 2008 related partly to the need to take time to prepare a detailed chronology which, given the very lengthy and involved background, was a significant exercise.

[24] I asked senior counsel for the pursuers why no minute of amendment had been prepared after the consultation in May 2007. It was said that there was no point in amending until the decision in Tonner was known. Thereafter, it was clear that the issue of the recall of the sist would be contentious. While it was difficult to explain the period between the decision in Tonner being known and the decision to recall the sist (which was not in the event necessary), that delay was for a relatively short period in the context of the history of the action. Any final delay caused by the need to fix an important hearing around counsel's diary should be ignored. I asked about the lack of communication between the pursuers' agents and the defenders' agents for over seven years. Senior counsel indicated that in the context of whether delays were excusable, this was not a case where the excuse involves the defenders at all. While as a matter of professional courtesy, it would have been helpful had the pursuers' agents thought fit to keep the defenders' agents advised of the various difficulties involved with obtaining expert reports, it did not go to the substance of the argument for excusable delay. In all the circumstances, it was submitted that the periods of delay in relation to the important period 1997 to date are excusable because of the way the legal aid system has operated in this particular case. Looking at the whole period, the one or two short periods where the delay might be inexcusable was not sufficient to reach a conclusion that there had been inordinate and inexcusable delay as set down in Tonner. Reference was made to the decisions of Lady Paton in Smith v Golar-Nor Offshore A/S [2007] CSOH 161 and of Lord Matthews in Mackay v Edmond [2008] CSOH 92.

[25] Senior Counsel made a secondary submission that if I was satisfied that there had been inordinate and inexcusable delay, there were various factors to be balanced before I could conclude that there was an additional element of unfairness particular to the facts of this case. While as a general point it had to be accepted that the recollection of witnesses would diminish over time, in this case he questioned whether there would be any difference in this particular case between 5 years and 20 years of delay. The main body of evidence in the case would be built around the files and the merits, though specialised, are relatively focused. In so far as Mr Smith, who had operated under the power of attorney could be said to be an important witness, it was clear that he could not be found from about 1996. The lack of his evidence would have been a problem even without the significant period of delay. Unlike Tonner, this was not a case where parties had been inactive during the prescriptive period and any element of unfairness caused by the lack of Mr Smith's evidence was not truly attributable to delay. It was submitted further that quantum is the most complex area of this action and that that has not been affected by the passage of time. Witness recollection is unimportant in calculating what loss flows from the failure to insert a particular clause in a contract. While it was accepted that to some extent the defenders would be hampered by the non-availability of Mr Hughes, it was clear that details had been taken from him early in the claim. Mr Motion had relied on the consistent assertion of the defenders that the pursuers had no good claim and Mr Hughes' views on that are recorded in correspondence. All information that had been given by Mr Hughes would still be available in some form. The major plank of the defenders' case has always been whether Pillar Electrical Plc would have accepted the clause that it was argued should have been inserted by Mr Hughes into the draft contract. That argument is unaffected by Mr Hughes' non-availability. Any prejudice caused by Mr Hughes' death was not such that justified exercising the draconian measure urged by the defenders. Senior counsel concluded by reverting to the Human Rights point. It was clear that if this action was privately funded, the delay would not have arisen. The dominant flavour of the case is that it is the legal aid difficulties that have left the pursuers open to a "Tonner argument".

[26] It was reiterated that to dismiss the action on the basis of delay would deprive the pursuers of their right to a fair trial. If consideration was being given to Article 6, it was accepted that the defenders also had a right to a fair trial within a reasonable time, but the consequences of delay for them were far less than the harsh consequences that would befall the pursuers if the action was dismissed.

Defenders' reply

[27] In a brief reply, Mr Motion indicated that the legal aid system had operated in this case in the same way that it would in any other legal aid litigation. He emphasised again the changes of agency on the part of the pursuers, the delays in seeking a second opinion on the merits and on quantum. Further, he argued that a legally aided party is under a general obligation to pursue an action within a reasonable time.

Discussion

[28] It seems to be settled that the court has power to dismiss an action where there has been inordinate and inexcusable delay, resulting in added element of unfairness to the defenders specific to the factual context of the case - Tonner v Reiach & Hall 2008 S.C. 1.

[29] While matters have to be viewed as whole in reaching a final decision, it seems to me that there are a number of distinct periods in this case which first merit separate scrutiny.

[30] The first period is from the alleged negligent actings, which concluded in July 1989 to the raising of the action in July 1994. While this is a case which was raised very close to the expiry of the quinquennium, there was considerable activity extra judicially between the intimation of the claim in September 1990 and the raising of the action in 1994. By the time the action was raised, the pursuers had already parted company with their first set of solicitors. However, in light of the subsequent upholding of a complaint by the Law Society against those solicitors, I do not consider it appropriate in this particular case to place too much emphasis on that period in considering subsequent delays.

[31] The second distinct period is from the raising of the action in 1994 to the last meaningful interlocutor in the case in May 1997. It could not be said that this was a case without court activity. The point was made that the pursuers had not availed themselves of the opportunity to adjust despite seeking continuations to do so. The defenders, however, had adjusted their pleadings and sought a procedure roll discussion. The Record had closed and while the case could not proceed to proof, there were pleadings upon which the court was in a position to make a determination. The solicitors acting during some of this period were those against whom a complaint of delay in failing to progress the action was upheld. Further, as noted earlier, it was during this period that the defenders took at least nine months to supply their file in response to a request from the pursuers' agents.

[32] The third and most significant period, from May 1997 to May 2007 is one in which the pursuers' current agents were primarily acting, at least from July 1997. It seems to me to be clear that a delay of more than 10 years during which no steps have been taken in the court process at all is excessive. In normal circumstances, one would expect even an action of this sort to be concluded well within that period. The real question, however, is whether or not that inordinate delay is excusable on the particular facts of this case. It should be noted that this period is largely unaffected by the changes of solicitors. The final change of solicitors in July 1997 does not appear to have been responsible for any significant delay. Within 3 months of the transfer of agency, correspondence was received confirming termination of the pursuers' legal aid certificates. The withdrawal of legal aid at that time was due to the lack of a supporting expert opinion, a matter that was unrelated to the transfer of agency.

[33] The other main plank of criticism on behalf of the defenders was the piecemeal way in which expert opinions were obtained. However, it is during this period that the joint opinion supportive of the pursuers' case was obtained on the basis of which the legal aid certificates now in force were granted. As I understand the position, it was not until after that supportive joint opinion was available that the terms of a remit to an independent chartered accountant could be ascertained and framed. The entries in the chronology for 2003 ( No 35/4, pages 9-10) illustrate very clearly the significant difficulties facing the pursuers' agents in attempting to obtain sanction for the relatively expensive exercise of independent quantification of the pursuers' claim. Sanction was not received from the Scottish Legal Aid Board to instruct KPMG until 17 May 2004. The chronology does not disclose any excessive delay on the part of the agents during this period. Between May 2004 and January 2005, further difficulties arose because in order to properly instruct KPMG, one of the expert solicitors who had given a favourable opinion required to frame a precise form of words that should have been incorporated in the terms of the contract negotiated by the defenders. The further sanction required for that exercise had to be obtained. Again, there is no apparent delay in dealing with matters during that period.

[34] Between January 2005 and February 2007 the KPMG report was in preparation. What seems on the face of it to be an extraordinary length of time to produce a report is adequately explained in the chronology (No 35/4, pages 12-15). What is clear is that the pursuers' solicitors were in regular contact with the expert Mr Crawford of KPMG and that delays during this period related primarily to the difficulties of quantification. Meetings with the first pursuer were involved, a draft report was available by 7 September 2006, but revisals were required and the final version was not available until 2 February 2007. Having reviewed the chronology and the submissions made to me I am satisfied that, while extremely unfortunate, the delays in this period are explicable and excusable in the circumstances.

[35] Finally, there is the period from May 2007 to February 2008. On receipt of the report the May 2007 consultation was fixed. I do find it surprising that steps were not taken to draft a Minute of Amendment immediately given the previous delays that had taken place. However, I accept Mr Ellis position that in his judgement there was little point in seeking to progress matters until the outcome of the Tonner case was known. The delay on the part of agents thereafter related primarily to the preparation of the detailed chronology in anticipation of the defenders' argument. That exercise seems to have proceeded in an unnecessarily leisurely fashion given the previous history. Although short, it is a period of delay for which no adequate explanation was given. By February 2008 parties were in a position to address and contest the issue of delay.

[36] There can be little doubt that the complicated and somewhat vexed history of the pursuers' attempts to litigate this matter raises a serious question about whether the court should now allow the case to proceed. During one or two of the periods referred to above, there have been isolated delays without good reason. However, those delays have been very short when compared with the lengthier delays caused by the need to work within the constraints necessarily imposed on legally aided litigants in a professional negligence case. I am not persuaded that the changes of representation have contributed materially to the delay. So far as the suggestion that Mr Cameron refused to take advice is concerned, it seems to be accepted that this is a difficult case with a client who challenged the initial expert opinion on the merits. As a favourable opinion was ultimately obtained, that challenge would appear to have been well founded to the extent that the pursuers' representatives and the Scottish Legal Aid Board are now satisfied that the case has a reasonable prospect of success. The final criticism related to the period from May 2007 which, while unsatisfactory, could not in the circumstances of the case amount to inordinate delay that would, as Mr Ellis put it "taint the whole period." Taking the whole period of the delay as I must, I have reached the conclusion that, on balance, the delay has been adequately explained and is excusable.

[37] In the absence of inexcusable delay, it follows that the additional element of unfairness need not be considered. It may be useful however, if I express a view on how I would have approached this matter had my decision on delay been different. The defenders highlight the death of Mr Hughes as the particular fact that would cause unfairness if the action was allowed to proceed. The pursuers accept that some prejudice or unfairness necessarily ensues from the death of a witness, but argue that a balancing exercise nonetheless would require to be carried out, to see if that would justify dismissing the whole action.

[38] In considering this aspect, I require to take into account the procedural consequences of allowing the action to proceed. (Tonner, para 138). I was advised by senior counsel for the pursuers that the proposed amendment would not relate to matters upon which Mr Hughes could have commented beyond the responses he had already given. It was said that the main body of evidence in the case would be built around the files and the merits, though specialised, are relatively focused. The defenders' position has been consistent and Mr Hughes' stance on the principal defence would be made known to the court. The question of whether Pillar Electrical Plc would have entered into the contract at all if an appropriate "earn out clause" had been drafted and inserted was not one that would have been answered by the now unavailable witnesses. The absence of Mr Smith, who had operated under the power of attorney had been a difficulty from close to the outset of proceedings.

[39] In my opinion, while the death of Mr Hughes undoubtedly hampers the defenders to some extent, it would not, in the particular circumstances explained to me, be sufficient in itself to dismiss the action on the basis of unfairness had the delay been inexcusable. It was not suggested that his position on the merits could not be before the court in some form. The particularly contentious issue on quantum is not one upon which he would have been asked to comment. There is no suggestion that the amendment will attempt to present a different case of fault against him. On the question of procedure, this is not a case where an action was raised and no further procedure took place. While amendment is anticipated, it is to be expected that that will now take place as expeditiously as possible. The material upon which the pursuers intend to rely is now all available to them. In all the circumstances, I would not have regarded this case as one requiring the unusual and severe sanction of dismissal. The post of last resort has not yet been reached.

[40] In the event I have not required to express any firm view on the Article 6 ECHR point presented by Mr Ellis. I have taken into account the difficulties that arose in this difficult case in obtaining legal aid sanction for expert opinions and the inability to progress the action without those in reaching the conclusion that I have on excusable delay. As part of balancing the parties' respective positions in relation to the unfairness argument, I would have taken into account that the pursuers would be deprived of their right to pursue the action with the benefit of legal aid, but I would not have regarded it as a determinative consideration.

Decision
[41] For the reasons elaborated above, I sustain the pursuers' first, third, fourth and fifth pleas in their Answers and repel the first, second, third, fourth and fifth pleas of the defenders' Minute and refuse~~serve~~ the first crave there of. I reserve the question of expenses raised in the remaining pleas to enable parties to address me on that matter.