Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION [2010] CSOH 61
A729/06	OPINION OF LADY CLARK OF CALTON in the cause BRENDA LOUSIE RENNIE on behalf of DMF Pursuers; against LOTHIAN HEALTH BOARD Defenders: ­­­­­­­­­­­­­­­­­________________

Pursuer: McAulay Q.C., Sutherland; Balfour + Manson LLP

Defenders: Stephenson Q.C.; Scottish Health Service, Central Legal Office

11 May 2010

Introduction
[1] This is an action raised by Brenda Louise Rennie, a solicitor, who was appointed curator bonis of DMF by interlocutor dated 7 December 2001. The pursuer sues the defenders for damages of £5,000,000 in respect of alleged negligent acts and omissions in 1980 in relation to the birth of DMF. It is not disputed by the parties that DMF was born on 18 July 1980 by emergency caesarean section, she has cerebral palsy, is incapax and always will be incapax.

[2] The case came before me on procedural roll. The two pleas of the defenders which counsel wished to discuss are as follows:

"1. The action being barred as a result of mora taciturnity and acquiescence the defenders should be assoilzied, which failing the action should be dismissed.

2. Separatim the pursuer (and Miss F as the pursuer's predecessor as DMF's legal representative) having delayed unwarrantably in prosecuting the action as a consequence of which there is a substantial risk that a fair trial will not be possible separatim the defenders being prejudiced in their ability to defend the action, the defenders should be assoilzied, which failing the action should be dismissed."

A third preliminary plea to the relevancy was not the subject of submission. The first plea in law of the defenders is directed to the common law plea. The second plea in law arises from the case law as developed in the line of authority based on Tonner v Reiach and Hall 2008 SC 1.

The History of the Action
[3] The present action was signetted on 12 September 2006 and service was accepted on behalf of the defenders on 14 September 2006. At that date DMF had passed into majority but was and remains incapax.

[4] The pleadings deal briefly with the circumstances in which the action came to be raised in Article 8 and Answer 8. On behalf of the pursuer it is averred that D's mother was unaware that there was any potential right of action at the time of D's birth. It is averred that:

"In 1999 she had a conversation with a Labour Councillor who asked about D's condition and birth and suggested to her that she might have a legal claim. This was the first time she considered this and she attended Solicitors for advice. There was a delay in obtaining the obstetric notes from Central Legal Office and thereafter an expert report was instructed in relation to the issue of negligence. A Curator Bonis thereafter required to be appointed. Papers were transferred to Messrs Balfour and Manson in January 2003 who noted that further reports were required to progress the action. Reports were then obtained from a midwifery expert and a neonatologist in relation to issues of causation. It was noted that the records supplied by Central Legal Office were poorly copied and steps were taken to locate the original notes and make proper copies. Sanction was then obtained for the instruction of further reports in relation to issues of quantum and life expectancy. A Summons was instructed and signetted and served on 12 September 2006."

The pursuer then makes averments to explain why the defenders are not prejudiced.

[5] The averments about the events leading to the initiation of legal action and the progress thereafter were supplemented by a 72 page document produced on behalf of the pursuer (6/16 of Process). I was informed by senior counsel for the pursuer that this is a summary of extracts from the files of various solicitors who had acted in relation to the legal claim of DMF from April 1999 to 3 March 2009. I also understood that this document was produced to help explain and highlight the efforts made by legal agents from time to time to progress the action and the various administrative, financial and practical difficulties encountered. There was no formal agreement in respect of 6/16 of Process. Senior counsel for the defenders stated that he could not comment on the accuracy, fairness and completeness of the chronology in 6/16 of process except insofar as there is overlap with the correspondence in the productions 7/1 to 7/41 of process. I understood from senior counsel for the defenders that he was content that 6/16 of Process should be used to illustrate the history. He did not wish to take issue with any of the extracts.

[6] The defenders' productions 7/1 to 7/41 of process relate to correspondence between agents for the defenders and solicitors, Malborough & Company and thereafter Balfour + Manson who acted for the pursuer during the period 1999-2004. Prior to 2001 when the pursuer was appointed as curator bonis, Balfour + Manson acted for Miss F, the mother of DMF. Joint Minute 17 of process relates to said productions.

[7] In answer 8 there are no factual averments directed to particular acts or omissions of the mother of DMF albeit it is averred that she and thereafter the curator "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 action". The averments draw attention to changes in the factual basis which underpin the negligence action and highlight that the first intimation of the case of fault directed at events on 15 July 1980 was made by adjustments intimated by letter dated 17 September 2007. As a result of amendment in October 2009, the sole basis of the alleged negligence now pled in the action relates to the pursuer's antenatal care on 15 July 1980. The defenders at page 28D aver that although the curator bonis was appointed on 7 December 2001 "no proceedings were raised by her for some 4.75 years after her appointment". This averment is made as part of the history. There was no attempt by the defenders in the averments or in oral submission to base the defenders' case on this period of delay alone. The averments thereafter set out the alleged difficulties and prejudice to the defenders that the delay since 1980 has caused.

[8] At the outset of submissions, I expressed some concern and reservations about dealing with the issues mainly on the basis of the pleadings, ex parte statements, productions 7/1 to 7/41 and 6/16 of process. There was some discussion about a minute and answers procedure under Rule of Court 21A and the requirement for oral evidence. Counsel for both parties wished to proceed on the basis of information which they presented to the court and with some reluctance I agreed to do so. Having considered the submissions and information presented, I consider that counsel were well founded in their submissions in this case as pled. I am not persuaded that a further focus in minute and answers, oral evidence or a detailed scrutiny of the documents referred to in 6/16 of process is necessary. The history in its broad development was not in any significant dispute.

Written Submissions
[9] Senior counsel for the defenders began to develop his submissions from a written text prepared for his own use. I invited him to provide me with a copy and I am most grateful to him that he was able to do so. I also requested that counsel for the pursuers provide a written outline if possible, prior to oral submissions. I would like to record my gratitude to counsel for both parties for their assistance in providing said written notes to assist me in considering their oral submissions. The revised note of arguments for the defenders which was provided is 19 of process. The oral submission of senior counsel for the defenders followed closely the detailed written submissions set out in 19 of Process.

Submissions by Senior Counsel for the Defenders
[10] Senior counsel for the defenders made reference to the history of the action as illustrated in the productions 7/1 to 7/41 of process. The first intimation to the defenders was a letter of 17 August 1999 seeking medical records. The earliest reference to a potential claim was 4 February 2000 (7/8 of process). The first legal aid application was refused on 10 October 2000 (7/12 of process). This was apparently because the application was raised on behalf of the mother of DMF but the mother at that time had no title to sue as DMF was then over the age of majority. On 13 June 2001 (7/16 of process) the defenders' agents were advised that legal aid had been granted to the mother of DMF. The defenders presumed that this was to obtain the appointment of a curator bonis. There was no contact with the defenders' agents from about June 2001 to July 2003 (7/18 of process). Thereafter there is correspondence on 26 November 2004 (7/41 of process) mainly about the difficulties of obtaining various medical records. Senior counsel for the defenders submitted that the pre-litigation correspondence was not helpful or focused in identifying the basis of any claim. To the extent that the correspondence suggested the basis of a claim, it apparently alleged medical negligence during the birth of DMF (7/11 of process). The summons in the present action was signetted on 12 September 2006 and accepted on behalf of the defenders on 14 September 2006. That was some seven years after the first letter from the pursuer's agents dated 17 August 1999 (7/1 of process). Senior counsel submitted that the summons did not aver a case in respect of antenatal care on 15 July 1980.

[11] In the answers lodged on 17 October 2006, the defenders included the pleas in law relating to mora and Tonner and sought further specification. There was an unopposed sist on the defenders' motion on 1 November 2006. This was recalled on 27 July 2007 on the pursuer's motion and the case was restored to the adjustment roll. During the period of adjustment, when the defenders were unable to object to the inclusion of a new case, the pursuers introduced by adjustment for the first time averments of fact in relation to antenatal care on 15 July 1980 related to a case of fault against an unnamed midwife in respect of the antenatal care on 15 July 1980. Other significant averments were introduced. Senior counsel for the defenders submitted that it was only on 17 September 2007 that the pursuer for the first time intimated that she considered that she had a right to damages arising from breach of duty on the part of a midwife in respect of antenatal care on 15 July 1980. The pleadings to that date had given notice only of claims in respect of events on 17 July 1980 and during labour on 18 July 1980.

[12] Senior counsel submitted that in summary the history demonstrated that the defenders were placed in the position of investigating allegations about an unnamed midwife some 27 years after the events complained of and more than 8 years after the first letter received from the pursuer's agents.

[13] Senior counsel explained that the midwife involved with the pursuer's care on 15 July 1980 at the antenatal clinic remained unidentified. During the hearing, there was a motion on behalf of the defenders for adjournment to investigate new information about the identity of the midwife. This information had been given by the pursuer's agents to the defenders' agents. I granted the motion but the investigations during the adjournment did not result in the identification of the midwife.

[14] The antenatal clinic was a shared care clinic with GP involvement. Senior counsel submitted that the relevant records 7/45 of process were difficult to understand as they appeared to be in two different forms of documentation. Senior counsel emphasised that since the minute of amendment on 5 October 2009, the only case made by the pursuer involving fault relates to events at the antenatal clinic on 15 July 1980. The other cases of fault which the defenders attempted to investigate have disappeared from the action. Under reference to 6/16 of process, senior counsel submitted that the chronology demonstrates attempts by agents to trace midwives and take statements from various midwives and other witnesses but it does not disclose any explanation for the change in focus of the case.

[15] Against this background, senior counsel for the defenders set out the difficulties and prejudice faced by the defenders in attempting to defend the litigation. He referred to the pleadings in answers 4 and 8 particularly at pages 10D-11A, 12C - 13B, 14C - 16D and 28A - 38. He submitted that the essential problem is not the diminished recollection of witnesses, but that the person who made the entries cannot be identified. He submitted that the medical records required to be treated with caution under reference to McConnell v Ayrshire and Arran Health Board 2001 REP LR 85, at paragraph 28. The consideration and assessment of nursing and other medical practice in 1980 was a problem after so many years. He emphasised the potential high value of the claim and that any payment made by the defenders would be a payment out of public funds. The first part of any amount would be from Health Board funds, the remainder from central government. He submitted that the users of the health service and the tax payer are entitled to protection from prejudice caused by delay.

[16] In order to set his submissions in context, senior counsel explained that under the present law the right of action of DMF will never be subject to limitation and will never prescribe. He referred to the Scottish Law Commission report number 207; Paton v Loffland Brothers North Sea Inc 1994 SLT (OH) 784; Sellwood's Curator Bonis v Lord Advocate 1998 SLT (OH) 1438; Johnstone, Prescription and Limitation, paras. 10.75 - 10.81; Walker, Prescription and Limitation of Actions, 6^th Edition page 117.

[17] Senior counsel then addressed me in relation to the first plea in law. He submitted that taciturnity and acquiescence fall to be judged objectively from the defenders' standpoint. He also submitted that the plea is not limited to delay before an action is raised but may also be relevant to delay occurring afterwards, as in the present case. He made reference to: Maclaren on Court of Session Practice at p.403; Johnstone, Prescription and Limitation, Chapter 19; Reid and Blackie, Personal Bar, 3.06-3.07; Assets Company Limited v Bain's Trustees 1904 6F 692; Woods v A.C.S. Motors, 1930 S.C. 1035; Halley v Watt, 1956 S.C. 370; Clerk v Pryde 1959 SLT (N) 16; Betune v A. Stevenson & Company Limited 1969 SLT (N) 12; Shennan v City of Glasgow District Council 1994 SLT (IH) 440; Tonner v Reiach & Hall 2008 SC 1; United Cooperative Ltd v National Appeal Panel for Entry to the Pharmaceutical Lists 2007 SLT 831.

[18] Turning to the history, senior counsel submitted that according to the pursuer, the mother of DMF became active in exploring whether there was a claim from April 1999. No explanation is given about any reason why she did not ask the same questions at an earlier date. He conceded that this was not a case in which a parent was in some way put on warning about the possibility of a claim. He accepted there was no duty on the mother to seek access to the notes to check what had happened. He accepted that cerebral palsy is a condition which can occur for a variety of reasons in circumstances where there is no negligence. He was critical of the slow pace of proceedings when the case was in the hands of solicitors and following the appointment of the curator bonis. He submitted that no explanation is given by the pursuer about the reasons that a claim arising from care on 15 July was not considered until August 2007. He submitted that no part of the delay was attributable to the defenders. The delay amounted to silence or inaction warranting the inference that any right to take proceedings arising from events at the antenatal clinic had been abandoned. That is the objective view which the court should take from the pursuer's conduct and the conduct of the mother of DMF. Prejudice is required and he submitted that the delay of 27 years before the claim was first made has inevitably prejudiced the defenders' position. In addition particular prejudice is set out in the pleadings.

[19] Senior counsel then addressed me in relation to his second plea in law under reference to Tonner v Reiach & Hall. He prayed in aid the obiter comments of Lord Justice Clerk Gill in Moore v Scottish Daily Record 2009 SC 178 at paragraph 14, "it is well established in Scots law that the court can exercise its inherent jurisdiction in the case of an abuse of process by way of a procedural sanction such as dismissal..." He submitted that the two cases predating Tonner were of little assistance as the approach adopted differed from that approved in Tonner. He referred to Newman Shopfitters Limited v M J Gleeson Group Plc 2003 SLT (Sh. Ct.) 83 and McKie v MacRae 2006 SLT 43. Counsel also referred to cases which post dated Tonner as follows: Smith v Golar-Nor Offshore A/S [2007] CSOH 16; Ronald v Argyll & Clyde Health Board, Sheriff W. Dunlop undated 2008 [appealed to Sheriff Principal and presently at avizandum); Hepburn v Royal Alexandra Hospital [2008] CSOH 81, 30 May 2008 (reclaimed with a hearing fixed for the spring of 2010); Mackay v Edmond [2008] CSOH 92, 19 June 2008; Cameron v Hughes Dowdall [2008] CSOH 151, 28 October 2008. Of these cases, counsel submitted that Hepburn had some similarities to the present case and referred in particular to the discussion at paragraphs 24 to 25.

[20] Senior counsel submitted that pre-litigation delay was considered to be relevant in Tonner under reference to paragraphs 129-138. He submitted that the starting point is to consider whether there has been inordinate delay. If so, it is then for the pursuer to explain or excuse the delay. Unlike the first plea of mora, the reasons for and therefore the excusability of the delay are relevant in relation to the second plea. He submitted that the defenders are critical of the fact that the pursuer has delayed making the only case that the defenders now face based on the alleged negligence of the midwife at the antenatal clinic on 15 July 1980. Insofar as the defenders can ascertain from 6/46 of process, no consideration was given to a case based upon the antenatal care on 15 July 1980 until August 2007. The pursuer was in possession of reports from about 2004. Nothing is said on behalf of the pursuer to explain why the delay should be considered excusable.

[21] There then followed a submission by senior counsel as to the form of decree which would be appropriate in the event that the first or second plea was upheld. He submitted that absolvitor was the appropriate disposal not dismissal. He referred to Tonner paragraphs 143 to 145 which held that the form of disposal appropriate if a plea of mora was upheld is absolvitor. He submitted that despite the reference in Rule 21A to dismissal, absolvitor was the appropriate disposal also in the present case if the second plea was upheld. To that extent he submitted the decision in Tonner recorded at paragraph 28 was in error. That error may have been induced by the form of the submission made on behalf of the pursuer. He submitted that absolvitor was the appropriate disposal for procedural failures as noted in Rules 29.1(3) and 33.10. He also noted that the disposal of absolvitor had been granted for procedural failure in cases such as Hampton v Mitchell (1885) 12R 969; Gilhooly v McHardy (1897) 24R 1185; Russell v McKnight's Trs (1900) 2F 520 and; Smith v Dixon 1910 SC 230.

[22] In oral submission, senior counsel accepted that the court, if so persuaded was entitled, without evidence, to reach a view in favour of the pursuer and repel the first and second pleas in law for the defenders.

Submissions by Senior Counsel for the Pursuer
[23] A short written outline of submissions was provided (18 of process). Senior counsel addressed the defenders' first plea in law. He emphasised that delay is not itself a defence. Mora must be combined with taciturnity and acquiescence. It is a plea to the merits with the onus of establishing the plea on the defenders. He submitted that there is no reported example of the plea having been successfully invoked in a reparation action in the last 100 years. He referred to Asset Co Ltd v Bain's Trustees and the opinion by the Lord President at page 705 "...but in order to lead such a plea receiving effect, there must, in my judgment have been excessive unreasonable delay in asserting a known right coupled with a material alteration of circumstances, to the detriment of the other party..." Senior counsel submitted that the Lord President was dealing with the plea of mora in the context of a case involving private right and that is to be distinguished from the more recent application of the plea in cases of judicial review where different considerations apply.

[24] Counsel emphasised the importance of knowledge. He referred to Johnstone, Prescription and Limitation, paragraph 19.05, Assets Co Ltd at page 740 and Lee's Trustees v Dun 1912 SC 50 at page 65-66. He submitted that the case law demonstrates that a plea of mora can be successfully invoked only if there is a delay in prosecuting a known claim. In this case there was good reason for the mother not to know that a cause of action might exist prior to 1999 in circumstances where there was lay acceptance that cerebral palsy "was just one of those things". The defenders have no averments to support earlier knowledge on the part of the mother. In such circumstances the issue of mora could not arise until at least 1999. The defenders have not addressed what impact the "innocent delay" from 1980 to 1999 might have. This is not a case where the relevant delay dates back to 1980. He referred to Somerville v Scottish Ministers 2007 SC 140 at paragraph 94 where the court stated:

"mora, or delay, is a general term applicable to all undue delay...taciturnity connotes a failure to speak out in assertion of one's right or claim. Acquiescence is silence or passive assent to what has taken place. For the plea to be sustained, all three elements must be present...we would emphasise that prejudice or reliance are not necessary elements of the plea. At most, they feature as circumstances from which acquiescence may be inferred. By its nature, acquiescence is almost always to be inferred from the whole circumstances, which must therefore be the subject of averments to support the plea".

Senior counsel submitted that it is plain from the productions in 7/1 to 7/16 that from 1999 the mother of DMF was seeking information with the intention of pursing an action. There is reference, for example, in the letter from the defenders' agents dated 29.11.99 (7/3 of process) that the defenders interpreted the mother's correspondence as a potential claim. Thereafter there is nothing in the history which the defenders identify that could induce the defenders into believing that a right to claim damages would not be pursued on behalf of the child DMF. In addition there is nothing to indicate that the defenders by relying on anything the mother or the pursuer in the present action did or said, altered their position to their detriment.

[25] Turning to the second plea in law for the defenders, senior counsel made three main points. Firstly there has to be relevant delay after the action has been raised. He made reference to McKie paragraph 50 and Tonner paragraphs 53 to 62. He prayed in aid the wording of Rule of Court 21A and the repeated reference to the word "claim". Secondly, he submitted that there was no delay in pursing the action after the action was raised in September 2006. He referred to the chronology set out at pages 45 to 72 of 6/16 of process. He submitted that there was a period of 2 years which lapsed from the raising of the action in 2006 until the closing of the record in September 2008. It is plain that much work was being done during that period including at least five consultations with five different experts. The agents required to work within the constraints of legal aid procedures which required prior sanction at each stage and there were also difficulties with the diaries of experts. The history of this case, after raising the action, is in stark contrast to the factual position in McKie and Tonner. Thirdly, senior counsel addressed the history during the period 1999 to 2006. He submitted that there was no inexcusable or inordinate delay and no unfairness. He made reference to the numerous attempts to progress the case referred to in 6/16 of process. He submitted that the case must be seen in its proper context. By 1999 this was a "stale" and complex claim of clinical negligence. Documents required to be recovered and the Scottish Legal Action Board's approval had to be obtained at various stages. A curator bonis had to be appointed. The case developed slowly but the picture is certainly not one of inaction. After January 2003, the case was being dealt with by solicitors, Balfour + Manson and by a solicitor within that firm who is an accredited medical negligence specialist. Further investigations including the instruction of additional experts were carried out. There were difficulties obtaining reports partly caused by missing records and poor copying of the records supplied. He submitted it was plain from 6/16 of process that there was no delay in the sense of want of prosecution in the court process as illustrated in McKie, Tonner and Hepburn. He accepted that some time had passed both in the period from 1999 to the raising of the action and thereafter to the finalising of the pleadings, the identification of the existing cause of action and the restriction of the averments of fault. Nevertheless he submitted that this should be properly understood in the context of a "stale" action being conducted on legal aid involving very complex medical issues of negligence and causation and experts from different disciplines.

[26] Counsel for the pursuer did not accept the criticisms made about the time taken to identify and focus the alleged negligence of the midwife which now forms the only basis of the present action. He accepted that the focus of the original pleadings was from 17 July 1980 onwards and explained that at that time the pursuer had an obstetric expert report but no midwifery report. He explained that during the period of the sist sought by the defenders, there were consultations on behalf of the pursuer with experts and that consultation process focused issues in relation to the earlier period of 15 July 1980. He explained that in the context of a case financed by legal aid, it is difficult to obtain sanction for expert consultations and such consultations are not sanctioned prior to the raising of an action. The period in which the pursuer was able to consult with experts about the case and obtain further information enabled the pursuer to narrow the issues and delete some of the averments of fault. The case is now focused on a complaint about alleged negligence relating to the issue of whether on the findings made and recorded on 15 July 1980, the mother of DMF should have been referred to hospital or reviewed the following day and the consequences thereof.

[27] In relation to prejudice and unfairness, senior counsel for the pursuer accepted that the relevant midwife had not been identified despite the best efforts of the pursuer's agents. He pointed out however that the defenders, despite any difficulties which they might have had, had been able to set out detailed averments in defence at 9B-C, 12C, 13B-C and 19E. There were witnesses identified whose names had been given to the defenders who were responsible for some of the entries in the records. Experts were familiar with the concept and difficulties of giving evidence in relation to historic events. Senior counsel expressed some scepticism about the amount of investigation which had been done by the defenders to identify the witnesses. Some of the difficulties were caused by the defenders such as the loss of some of the notes by the defenders and the failure by the unidentified midwife to sign her note in such a way as to provide identification. These matters are referred to in more detail at page 19 of 18 of process.

Discussion
[28] Counsel for both parties conceded as a matter of law that the present action has neither prescribed nor limited and that as DMF has always been incapax and would remain so, the claim would not prescribe or limit so long as the provisions of the law in the Prescription and Limitation (Scotland) Act 1973 (the 1973 Act) as amended remain in force. It was also not in dispute that for a period the non-age provisions also applied to DMF as part of the history of the action. These provisions no longer apply as DMF has reached the age of majority (now sixteen years).

Prescription and Limitation
[29] I consider that it is instructive to consider the way in which the law has developed in relation to prescription and limitation in an action such as the present which relates to a child who has been incapax since birth and remains incapax as an adult. The discussion before me did not analyse in any detail the difference between prescription and limitation but it may be helpful if I record my understanding of the distinction. Scots law has for centuries recognised various statutory rules of prescription which provide, that after a particular period of time, a right is wholly extinguished by law. A right or claim which has prescribed after a prescriptive period of time is not only unenforceable, it is extinguished. The effect of the limitation rule is to make a right or claim in certain circumstances unenforceable after a stated period of time. But the limitation rule does not extinguish the right or claim.

[30] The law is not in dispute. The present action is an action of damages in which the damages claimed consist of or include damages in respect of personal injuries. Such actions in terms of Section 17(2) of the 1973 Act as amended must in general be brought within three years of the dates specified in Section 17(2)(a) or (b). It is provided however in Section 17(3) that in the computation of the period specified in 17(2), "there shall be disregarded any time during which the person who sustained the injuries was under legal disability by reason of non-age or unsoundness of mind". Section 19A of the 1973 Act gives the court powers to extend the limitation period in certain circumstances.

[31] The long negative prescription was abolished in respect of obligations to make reparation in respect of personal injury by the Prescription and Limitation (Scotland) Act 1983 (the 1983 Act). This was as a result of "minor and consequential" amendment in Schedule 1 paragraph 2 which amended Section 7(2) of the 1973 Act. Under transitional provisions in the 1984 Act Section 5, this change had retrospective effect as in the present case, the obligation to make reparation had not been extinguished as at the relevant date when the 1984 Act was brought under force. As a result of this change, the long negative prescription which would have become effective in the present case on 19 July 2000 did not take effect. The Scottish Law Commission Report Number 74 part 2 pages 6-9 considered the long negative prescriptive in personal injuries cases. The main reason for the recommendation that the long negative prescription should no longer apply to personal injury claims was the possibility that the continued application of a rule of prescription may cause injustice to pursuers especially where an injury is initially of a latent character such as a respiratory disease. At paragraph 2.7 of said Report, the Scottish Law Commission considered that abolition of the long negative prescription could only be justified if a shorter period of limitation were retained and the principles governing that limitation adequately balanced the interest of the pursuer and defender. There was no consideration given by the Scottish Law Commission about the implications of a case, where there would be no counterbalancing limitation period because the limitation period is suspended by reason of the legal incapacity of the injured person. I was not directed to any specific considerations which might have influenced the policy leading to the statutory changes made by Parliament.

[32] It should be noted also that another change made by the 1983 Act in relation to personal injury claims related to the treatment of persons under legal disability by reason of non age or unsoundness of mind. Under the 1973 Act, as originally enacted, there was an extension of time for bringing an action, if the person under legal disability was not in the custody of a parent as defined in section 17(2) of the 1973 Act. That would not have been of assistance in the present case as DMF was in the custody of her mother. Under and in terms of the 1983 Act Section 2(3) the conditions about the custody of a parent was removed. It is provided that in the computation of the period relative to limitation there shall be disregarded any time during which the person who sustained the injuries was under legal disability by reason of non age or unsoundness of mind. It is plain from the discussion and recommendations of the Scottish Law Commission Report which preceded the 1983 Act (Scottish Law Commission No. 74) that it was considered that there was potential unfairness, for example, the exception "might discriminate against any incapax whose affairs were not being properly looked after".

[33] Whatever the specific policy reasons for the changes in the legislation, it is plain that a change in policy drove the changes in the statutory provisions. The result of the balancing exercise sought to be achieved by Parliament in relation to prescription and limitation is clear in this case. Parliament chose to allow children the benefit of the full period of legal disability as a result of non age and adults the full period of incapacity due to unsoundness of mind. In addition, because Parliament chose to disapply the long 20 years negative prescription, Parliament must be presumed to have had in mind that in cases of "unsoundness of mind" there may be claims continuing well beyond 20 years to a full life span of an adult incapax. Obviously one of the underlying concerns addressed by prescription and limitation is a concern about stale claims and the desire not to have uncertainty produced by claims made many years after parties have ordered and settled their affairs. But that is only one element in a complex balancing exercise in which Parliament has settled from time to time where the balance should lie.

The first plea in law for the defenders

[34] There was no dispute between the parties that the defence of mora taciturnity and acquiescence was capable of being applied to circumstances prior to and post the raising of an action for damages for personal injury such as the present action. This was accepted in Tonner (paragraph 108).

[35] It is not perhaps surprising that there are no recent examples of successful reliance on the plea in personal injury cases, as in almost all cases of delay, defenders will seek to rely on the relatively short statutory 3 year limitation period in the 1973 Act as amended.

[36] Many cases about mora were cited to me but I cannot find in these cases a helpful precedent in relation to the facts of the present case. I consider that cases relating to judicial review are not of assistance in relation to time periods as the consideration in such cases involving public law not private rights are very different. I agree with the comments expressed by Lord Trayner in Assets Co Ltd at page 739 "as to mora - on this matter many authorities were cited to us, which I am glad to say do not call for any detailed consideration. The decisions upon this question of mora and its effects, depends so much upon the special facts of each case that scarcely one can be cited as an exact precedent for another".

[37] Despite the statement in Assets Co Ltd by Lord Moncrief at page 748 that "there is not much doubt as to the general law on the question of mora", I consider that assessment is too optimistic at least in this case. There is a dispute in this case about the relevance of knowledge of the existence of a claim and the effect of prejudice. I consider that the critical difference in the analysis put forward on behalf of the parties relates to these elements in the meaning of the plea.

[38] The term mora is a short hand form of referring to a defence which encompasses the elements of mora taciturnity and acquiescence. The defence involves delay, taciturnity (or silence) and acquiescence. In many cases the problem or dispute between the parties may be to determine whether the length of the delay coupled with what has occurred, fulfils the elements of the plea. That may be sufficient for analysis in most cases where the pursuer is aware that a claim against the defender exists. As I understood the submissions by senior counsel for the defenders, the knowledge or otherwise of the pursuer about the existence of a claim is not relevant to his analysis because the history is to be judged objectively and not by reference to the pursuer's subjective knowledge or intention.

[39] I consider that the submissions on behalf of the defenders are impossible to reconcile with the analysis of mora by the Lord President in Assets Co Ltd at page 705. Firstly, the Lord President emphasises that mere lapse of time will not found an effective plea of mora. That he considers to be the remedy provided by the law in the various prescriptions and limitations. The Lord President makes the caveat, which is relevant in my opinion to the present case, that where a case does not fall under any prescription or limitation known in the law of Scotland "we should be slow to add, by decisions, a plea of bar or discharge resulting from mere lapse of time, which the legislator has not thought fit to sanction by statute". The Lord President at page 705 then continues:

"at the same time, I do not doubt that where, coupled with lapse of time, there have been actings or conduct fitted to mislead, or to alter the position of the other party to the worse, the plea of mora may be sustained. But in order to lead to such a plea receiving effect, there must, in my judgment, have been excessive or unreasonable delay in asserting a known right, coupled with a material alteration of circumstances, to the detriment of the other party...".

Lord Trayner states at page 740 that to avail a defender anything it must be delay in prosecuting a known claim - that is a claim known to the pursuer to exist. Lord Trayner also referred to the circumstances in Assets Co Ltd in which the pursuers were under no obligation to make their inquiries sooner than they did.

"They had no reason to suspect Mr Bain's surrender to be anything other than he had represented it to be - a complete surrender - and they are under no obligation to test the accuracy of Mr Bain's statements...If, therefore, the pursuers were not bound to suspect Mr Bain's fairness, or to test the accuracy of what they had no reason to doubt, their delay in doing so was not a delay on their part of which the defenders can now take any advantage."

[40] In Lees Trustees, Lord Salvesen at pages 65-66 states:

"The next point on which I do not agree with the Lord Ordinary is in his view that the right of action which the pursuers possessed against the present defenders was a known right. It may be conceded that in 1889 they had the means of ascertaining just as readily as in 1909, when the present action was brought, the facts upon which their claim is based, and that all the material facts were already within their knowledge. On the other hand, I think it is plain that the idea of suing Mr Dun's representatives never occurred to Mr Schulze until after he had raised the unsuccessful action against the marriage by the Court. Where a discharge or abandonment is to be presumed from mere silence, there must, I think, in the ordinary case be 'actual' and not merely 'imputed' knowledge. A man cannot be presumed to discharge or abandon a claim which he did not know existed, even where it may be said that he could easily have ascertained what his rights were on inquiry. The presumption which arises from mora and taciturnity is a presumption of fact and not a presumption of law."

[41] The Court in Tonner refers to the discussion by the Lord President in Assets Co Ltd and refers to his opinion as "the classic statement of the nature of the plea of mora" (paragraph 109). The full analysis given by the Lord President is not quoted in paragraph 109. In my opinion however it is plain from the opinion of the Lord President that his analysis presupposes "a known right". I do not understand that the opinion of the court in Tonner departs from his analysis.

[42] I do not consider it surprising that the common law defence should take into account the knowledge of the pursuer. In my opinion it is for the defenders to plead averments relevant to found the defence. The plea refers specifically to the concept of acquiescence. It is difficult to understand how there could be any inference of acquiescence in a situation where there was no knowledge at all. In the present case the defenders make no averments as to the reasons the mother of DMF (if it was her responsibility) should have carried out investigations into the condition, cause and reasons for the condition of DMF. It is not averred by the defenders that the incapax or anyone on behalf of the incapax knew (or ought to have known) that DMF had a right to damages for personal injury or a claim for personal injury until the defenders received the first intimation of a claim on 17 August 1999. The reality of this case is that a child was born with cerebral palsy in circumstances where there was no suggestion from anyone at the time or throughout the many years of medical care provided to DMF that the condition was caused or materially contributed to by any act or omission on the part of any medical or nursing staff, negligent or otherwise. DMF was in the care of her mother but after DMF reached the age of majority, DMF did not have appointed a legal representative to raise legal proceedings until the appointment of the curator bonis. Senior counsel for the defenders conceded that there was no duty on the mother to seek the medical records and research the reasons for the cerebral palsy of DMF. That concession may explain the absence of any averments directed to knowledge or implied knowledge.

[43] I may add that none of the cases cited in relation to mora involved a claim on behalf of an incapax which has not prescribed or subject to limitation. Obviously by definition the incapax cannot have knowledge. A person who is incapax, because of unsoundness of mind, would also have the protection of exclusion from the limitation period during age minority. If knowledge is relevant to the defence of mora, it is difficult to understand how the knowledge (actual or implied) might arise in this case. It could only arise if the common law defence fixed the incapax with the knowledge of a parent. I would be very slow to reach that conclusion without binding authority because such a result might result in injustice and unfairness to the incapax. In any event, I consider that there are no relevant averments of actual or implied knowledge on the part of the mother of DMF until 1999 and as at that date the mother of DMF had no legal right to bring proceedings.

[44] I also require to consider the effect and implications of prejudice to the defenders. Senior counsel for the defenders prayed in aid prejudice to the defenders almost as if it was a stand alone element. I am not persuaded that is the correct approach. I am persuaded that prejudice to the defenders may be relevant but not on the basis advanced by senior counsel for the defenders. I have had regard to the opinion of the court in Somerville in paragraph [94]. The court in that paragraph highlights the elements of taciturnity and acquiescence in the plea of mora and states:

"We would emphasise that prejudice or reliance are not necessarily elements of the plea. At most, they feature as circumstances from which acquiescence may be inferred. By its nature, acquiescence is almost always to be inferred from the whole circumstances, which must therefore be the subject of averment to support the plea".

[45] In this case there are averments of prejudice at 12E to 13B and 29A to 30A. These averments were developed in oral submission by senior counsel for the defenders. I consider that the reason for the difficulties averred is the lapse of time, over 26 years, since the birth of DMF. But mere lapse of time and the consequences thereof is not sufficient in my opinion to found the plea of mora taciturnity and acquiescence. In my opinion, it is for the defenders to identify the period when the relevant delay commenced, that is the date when the pursuer failed to assert a known right and the facts and circumstances from which acquiescence may be inferred. The pleadings of the defenders in this case appear to assume wrongly (in my opinion) that the pursuer's knowledge is irrelevant and the pleadings date the delay from the date of birth of DMF. As a result the defenders' pleadings in relation to prejudice are founded on a complaint of delay dating back to 1980 and are not focused in relation to averments of prejudice from the relevant date, which combined with any other facts and circumstances, may be capable of founding an inference of acquiescence. In these circumstances I am not persuaded that the defenders have pled a relevant case in support of their first plea-in-law.

The second plea in law

[46] Senior counsel for the defenders set out a helpful overview of the case law since Tonner v Reaich & Hall which I have summarised in paragraph [19].

[47] I note that the power has been described in Tonner "as an option of last resort" (paragraph 123). I therefore approach the assessment of the history in the present case on that basis. An issue discussed in Tonner was whether, and if so in what circumstances, a judge of the Court of Session has the "inherent" power to put to an end a pending action on grounds comparable to those on which a judge in England could strike out an action for want of prosecution. I note in the analysis of the powers of the court in England there is reference in Tonner at page 2008 as follows:

"(8) Save in exceptional cases an action will not be struck out for want of prosecution before the expiry of the relevant limitation period: Birkett v James ....[at p]321D. It is not altogether clear how this rule is best explained. It may be that before the limitation period has expired the delay cannot properly be regarded as 'inordinate' cf. Birkett's case, at p.321D. Alternatively, it may be that, though the delay is both inordinate and inexcusable, the court would not in the ordinary case exercise its discretion to strike the action out if a fresh writ could be issued at once. To do so would only delay the trial".

[48] If that general approach is followed and regard is given to the fact that the limitation period has not expired in this case, that would provide a short answer in the negative to the submissions on behalf of the defenders. I have not however decided this issue on that narrow basis.

[49] I have addressed the issue on the basis of the general principles which I understand have been approved in Tonner. I accept that I have the power to bring an action to an end for want of prosecution (paragraph 123). I have had regard to the principles set out in Tonner, (in paragraphs 130-138). I have considered firstly whether there is "inordinate delay" since the raising of the action. That I consider to be the relevant date. I have no hesitation in answering that question in the negative. I note that the summons was signetted on 14 September 2006. The issues involved are complex. The pursuer required to explore and advance the claim with the inevitable restrictions and delays involved with legal aid. I consider that the general restrictions are within judicial knowledge and are in any event illustrated in 6/16 of process. I consider that the submissions made by senior counsel for the pursuer in relation to 6/16 of process were well founded for the reasons he gave. This is not a litigation being pursued by an individual or commercial enterprise with substantial means or backed by an insurance company prepared to fund expensive reports and consultations immediately on request. I understand that there was a period of some 2 years from the raising of the action in 2006 until the closing of the record in September 2008. During that period the action was sisted by the defenders for 8 months from November 2006 to July 2007. I consider that to be a reasonable period during which the pursuer's agents actively sought to advance the case. There was substantial adjustments by both parties. There were at least five consultations with five different experts on behalf of the pursuer. In my opinion it is not unusual in the course of such preparation that the case clarifies and develops. I was informed that clarification and development occurred in the present case. I accept that it was not until October 2009 that the pursuer focused in the summons the averments of fault which now form the only basis of the action. I do not consider that this is surprising within the context of a complex case made more difficult because of the passage of time. The difficulties faced by the pursuer include some difficulties for which the defenders may bear responsibility such as problems with medical notes and the failure of the midwife employee to write her notes in a form which enabled her to be identified. The inability to identify the midwife now blamed has caused difficulties for the pursuer as well as the defenders.

[49] This is a case which was raised many years after the events which are the subject of the claim. If there had been substantial and unreasonable delay since the raising of the action, I accept it would be reasonable to judge the post litigation delay more severely. I am not persuaded however that there is anything in the delay in proceedings since this action was raised which would entitle me to conclude that the delay is "inordinate". Even if the delay was inordinate, I consider that in the context of the development of this complex case with the constraints of legal aid, it is in my opinion excusable. I refer to my discussion in paragraph 48. I conclude therefor that neither tests are satisfied in this case. I am not persuaded to exercise my discretion to bring the pursuer's case to an end by dismissal or by absolvitor.

[50] I consider that the cases cited which I summarise in paragraph 19 ardifferente fact dependent and none of them assist me in relation to the particular facts and circumstance of the present case. Senior counsel for the defenders submitted that Hepburn was a case which had some similarity to the present case. I consider that the similarities are superficial. Hepburn, was not a case involving an incapax. In that case one month after the raising of the action, the action was sisted in May 1998. "It was a matter of agreement that virtually nothing was done thereafter by the agents then instructed who eventually withdrew from acting on 21 September 1004. New agents received instructions at the end of November 2004" (paragraph 4). There was an acceptance in that case that the original solicitors "effectively did nothing to progress the action between 1998 and the end of 2004 and that the pursuer's counsel was not in a position to excuse or explain that delay" (paragraph 16). I consider that these circumstances are very different from the circumstances in the present case.

Disposal

[51] As I am not prepared to uphold the first or second plea of the defenders, the issue about the form of disposal is academic. If the first plea was upheld, I accept that a disposal of absolvitor, would be appropriate. I consider however that there might be difficulties in sustaining such a plea without any evidence if the plea was relevantly averred. I consider that I am entitled to repel such a plea where the defenders have not pled sufficient to found the elements of the plea in the context of the history presented to me. In relation to the second plea-in-law, I note the procedure followed in Tonner expressed in paragraph 163. I do not consider that the present case is the type of case envisaged in Tonner. I consider that it is unnecessary to express any view about the appropriateness or otherwise of dismissal which was the form of disposal determined in Tonner.

[52] Both in the pleadings and in submission, senior counsel for the defenders made it plain that in this case the first and second pleas were substantive pleas on the basis of which he sought absolvitor. The case was not presented on the basis that the delay made the case unsuitable for jury trial and/or that some evidential inference was appropriate because of the delay. I do not therefore address these issues. It was not in dispute that the evidential onus at proof would lie on the pursuer. I merely comment that a proof after so many years may cause difficulties for the pursuer but that is not a matter which bears upon my decision at this stage.

[53] I therefore repel the first and second pleas of the defenders. I reserve all questions of expenses and further procedure.