SHERIFFDOM OF SOUTH STRATHCLYDE DUMFRIES AND GALLOWAY

 

A384/02

	JUDGMENT OF SHERIFF PRINCIPAL B A LOCKHART
	in the cause
	SIMON ROSS
	Pursuer and Appellant
	against
	GILES INSURANCE BROKERS LIMITED
	Defenders and Respondents

 

 

Act: Mr McMillan, Counsel instructed by John Henderson & Sons, Solicitors, Dumfries

Alt: Mr Conn, of MacDonalds, Solicitors, Glasgow

 

DUMFRIES: 22 July 2011

 

The Sheriff Principal, having resumed consideration of the cause, refuses the appeal and adheres to the sheriff's interlocutor of 21 February 2011 complained of; finds the pursuer and appellant liable to the defenders and respondents in the expenses of the appeal; allows an account thereof to be given in and remits same when lodged to the Auditor of Court to tax and to report; certifies the appeal as suitable for the employment of counsel.

 

 

NOTE:

 

Background to the appeal

 

1.             This action commenced on 23 September 2002 when it was served on the respondents. The appellant seeks payment of £57,566.73 said to be remaining due to him when employed by the defenders as a Senior Accounting Executive in the period 2000 - 2002. Approximately £2,000 is made up to a mileage claim and a profit share claim. The vast majority of the sum sued for comprises a claim for payment of commission said to be owed to the appellant in respect of inter alia new business undertaken by him.

 

2.             The full timetable of the procedure in the action is to be found in paragraphs 1, 22, 23, 24 and 25 of the sheriff's note and I do not propose rehearsing the contents of these paragraphs. It is sufficient to say that on 20 October 2005, after extensive procedure in the cause, the sheriff allowed "parties a proof of their respective averments on a date to be afterwards fixed". This was the third time that a proof had been allowed. Two previous proofs had been discharged. Apart from a decerniture in chambers on 28 July 2006 in respect of an award of expenses previously made in favour of the appellant without appearance of parties, the case lay dormant in Dumfries Sheriff Court until 3 November 2010 when the appellant lodged motion 7/7 of process moving the court to assign a diet of proof in terms of the earlier interlocutor of 20 October 2005. In response the respondents lodged motion 7/8 of process, also on 3 November 2010 to assoilzie the respondents from the craves of the initial writ.

 

3.             Both these motions were debated before the sheriff on 11 November 2010 and 20 January 2011. The sheriff very helpfully set out the applicable law on the subject as it applied to this case in paragraphs 4 to 19 of his note. Again I do not propose to rehearse the details of that summary. It was accepted by parties at the appeal. In particular Rule 15.7 was added to the Ordinary Court Rules 1993 by virtue of paragraph 14 of the Act of Sederunt (Sheriff Court Rules) (Miscellaneous Amendments) 2009, SSI 2009, No 294, effective from 1 October 2009. The relevant provisions of Rule 15.7 are in the following terms:

"(1) Any party to an action may, while that action is pending before the court, apply by written motion for the court to dismiss the action due to inordinate and inexcusable delay by another party or another party's agent in progressing the action, resulting in unfairness.

(4) In determining an application made under this Rule, the court may dismiss the action if it appears to the court that-

(a) there has been an inordinate and inexcusable delay on the part of any party or any party's agent in progressing the action, and

(b) such delay results in unfairness specific to the factual circumstances, including the procedural circumstances, of that action.

(5) In determining whether or not to dismiss an action under paragraph 4, the court shall take account of the procedural consequences, both for the parties and for the work of the court, of allowing the action to proceed."

 

4.             The sheriff referred to the fact that the First Division in the case of Hepburn v Royal Alexandra Hospital NHS Trust 2010 SLT 1071 had revisited the question whether the Court of Session had an inherent power to dismiss an action for delay in pursuing it by the pursuer. The case had called before the Lord Ordinary before the introduction of Rule 21A to the Rules of the Court of Session, but before the First Division after that Rule had been introduced. Rule 21A was in similar terms to Rule 15.7 of the Sheriff Court Rules. The tests were said to be (a) an inordinate and inexcusable delay on the part of any party or any party's agent in progressing the action and (b) such delay resulting in unfairness. The Lord President and Lord Reed both regarded the "unfairness test" as unspecific. However, the Lord President at paragraph 32 stated:

"The unfairness in question must be such that a fair trial is no longer possible or there is a substantial risk it is no longer possible."

Similarly Lord Reed opined in respect of the unfairness test at paragraph 51:

"There is a substantial risk that justice could not be done if proceedings were allowed to continue."

 

5.             The sheriff in his note inter alia recorded as follows:

"[32] In the present case the main reason for the five year delay rested with procedure for recovery of documents. The pursuer appears not to have been happy with such documents as were recovered. He never sought to have the commissioner carry out a formal hearing. He appointed a colleague to examine the documents and produce a report thereon. Sadly that colleague was diagnosed with cancer and the pursuer had eventually to take over the analysis himself. He completed the task in August 2010. In my opinion, this was not a satisfactory explanation for the delay. No doubt the task is a complicated one and involved perusal of considerable documentation, and the task was made more difficult by the colleague's illness, but the responsibility still lay with the pursuer to complete this task as expeditiously as possible. Even allowing for the difficulties that arose, I am not satisfied this should have taken five years.

[33] I am therefore of the view that there has been inordinate and inexcusable delay on the part of the pursuer in this case. The next question is whether that delay has resulted in unfairness specific to the factual circumstances, including the procedural circumstances, of the action ... ...

[35] The defenders consider they are prejudiced in their defence for a number of reasons. These include unavailability of witness, one of whom left the company over five years ago and who cannot now be traced and three witnesses who left the company and who have not yet been traced; two available witnesses but whose recollection of events after such a long period of time is likely to have deteriorated; the inability to trace most of the subcontractors referred to on record; the lack of access to the defenders' e-mail system; and the difficulty of the defenders locating records on their old system from 2005.

[36] In reply, Mr Bryce submitted that while recollections may have faded over time, there was sufficient documentary evidence available to allow a fair trial. If the case went to proof, difficulties of recollection could be taken into account in assessing credibility and reliability of witnesses. He did not think the defenders would be prejudiced in conducting their defence at proof.

[37] It is not possible in my opinion to say for sure that a fair trial is impossible in this case but I am of the view there is substantial risk that would be the case. The pursuer will seek to rely on his analysis of the documents recovered. It is not possible to determine the significance of that documentation at this stage. However, the defenders are entitled to lead witnesses and make investigations in response to the case on record.

[38] If the action is to proceed to proof, that case will have to be amended for the fourth time. The defenders have highlighted significant problems in preparing the defence as the case stands. I accept recollection evidence may be important. By the time the case got to proof on amended pleadings, those witnesses would have to recollect events going back potentially to 2000, some 11 years before the likely date of proof. The question whether commission is due is likely to be a complicated one. It is possible a substantial number of transactions would have to be considered.

[39] The pursuer has had five years to formulate his claim on a new basis; the defenders are likely to be placed at a significant disadvantage in trying to present their defence, of which, at the moment, they have no notice because the pursuer has not sought to amend. While I accept that might be justified on cost grounds, equally the defenders are being asked to defend a case which is no longer the case on record and of which they have no notice.

[40] In all the circumstances therefore I consider unfairness does result from the pursuer's inordinate and inexcusable delay in this case. I consider that discretion should be exercised in favour of the defenders and the action be dismissed. The case has been in court for eight years. The pursuer did not satisfactorily take steps to progress the action for five years. He had amended three times. Proof had been allowed three times. Debate had been allowed and discharged three times. He had indicated an intention to amend in September 2010. No Minute of Amendment was prepared even though the final hearing of motion 7/8 had been delayed to January 2011.

[41] The pursuer was not in a position, despite his motion 7/7, to proceed to proof on his current pleadings. The action could progress only after at least a fourth round of amendment, with proof likely to be delayed until at least October 2011. This further period of delay is only likely to further prejudice the defenders in conducting their defence. Moreover, they will have to meet an amended case of which they have not yet had formal notice. This in my view adds an added element of unfairness, making it appropriate for the court to dismiss the action under Rule 15.7. ..."

 

6.             The sheriff on 21 February 2011 refused the appellant's motion no 7/7 of process, and granted the respondents' motion 7/8 of process which had been amended in terms of Rule 15.7. He dismissed the cause (rather than grant decree of absolvitor as originally craved) in respect of inordinate and inexcusable delay by the pursuer in progressing the case, resulting in unfairness. He awarded expenses to the defenders except insofar as previously determined.

 

7.             It is against that interlocutor that the pursuer and appellant now appeals.

 

Submissions for the pursuer and appellant

 

8.             Counsel for the appellant asked me to recall the sheriff's interlocutor of 21 February 2011 wherein he dismissed the cause. I was asked to remit the cause to the sheriff to proceed as accords. The basis of the appeal was that the sheriff's decision was clearly wrong and manifestly inequitable. In particular from paragraph 35 onwards the sheriff had failed to take into account the respondents' behaviour and conduct of the proceedings and he had taken into account several irrelevant factors. His decision should accordingly be set aside.

 

9.             Counsel for the appellant accepted that the sheriff had properly summarised the applicable law in paragraphs 4 to 20 of his note and he took no issue with that summary. He in particular accepted that, in terms of Rule 15.7 of the Ordinary Court Rules, the court may dismiss the action if it appears to the court (a) that there has been inordinate and inexcusable delay on the part of any party or any party's agent in progressing the action and (b) such delay results in unfairness specific to the factual circumstances, including the procedural circumstances, of that action.

 

10.         It was accepted that the sheriff was correct to hold that there had been inordinate and inexcusable delay on the part of the pursuer and appellant. No issue was taken with the sheriff's conclusion. However, as far as the question of fairness was concerned, I was referred to the dicta in Hepburn v Royal Alexandra Hospital NHS Trust supra of the Lord President:

"A fair trial is no longer possible or there is substantial risk that it is no longer possible" (paragraph 32)

and of Lord Reed:

"that there is a substantial risk that justice could not be done if the proceedings were allowed to continue":

(paragraph 51)

 

11.         At the hearing before the sheriff, solicitor for the appellant had indicated that, if he was allowed to proceed, the appellant would seek leave to amend. He stated to the sheriff that the action could not proceed without amendment. At that time the Minute of Amendment was work in progress and was not produced. The Minute of Amendment was in fact prepared and was lodged with the Sheriff Clerk on 24 June 2011. This was the Friday before the appeal which was due to be heard the following Monday. However, notwithstanding the lodging of the Minute of Amendment on 24 June 2011, it was counsel's submission at the appeal hearing on 27 June 2011 before me that the current pleadings were sufficient for his client's purposes. He did not insist on the Minute of Amendment, which was withdrawn. Counsel's position at appeal was that, if allowed to proceed, the appellant would do so on the basis of the amended Record which had been unchanged since October 2005. I was informed that the appellant had accepted the advice given to him shortly before the appeal commenced not to proceed with the Minute of Amendment.

 

12.         It was submitted that the statement by solicitor for the appellant before the sheriff that the action could not proceed without the Minute of Amendment, and the fact that it had not been lodged at that time, had weighed heavily with the sheriff. In particular at paragraph 39 the sheriff said:

"The pursuer has had five years to formulate his claim on a new basis; the defenders are likely to be placed at a significant disadvantage in trying to present their defence, of which, at the moment, they have no notice because the pursuer has not sought to amend."

 

13.         In paragraph 34 of his note the sheriff observed there were three parts to the pursuer and appellant's claim, namely (1) a mileage claim (2) a profit share claim and (3) the vast majority of the sum sued for comprised a claim for commission said to be owed to the pursuer in respect of inter alia new business undertaken by him. Proof of the commission payments were said to rely on a list generated by the defenders and respondents contained in 5/2/2 of process. It was suggested that these were matters which, as part of the employment relationship, the respondents were bound to investigate in 2002 to finalise their relationship with the appellant when he left their employment. It was suggested it was for the respondents to investigate that situation. They should have done so in 2002. As far as the mileage claim was concerned full details of the claim were set out at 5/2/1 of process. It was suggested there was nothing difficult about a contemporaneous investigation of that claim at the time the pursuer and appellant ceased employment with the respondents. The respondents were obliged to properly account to the appellant at the time he left their employment. If, for any reason, a full investigation was not done at that stage, it ought to have been done when the action was raised. It was said that the respondents had changed the nature of the defence. Initially they had claimed a set off, but they then claimed false mileage claims. There was also a defence that the appellant was not authorised to give no claims discount awarded to European subcontractors. It was suggested there had been "shifting sands" as far as the respondents were concerned. Files produced had contained only some 12% of information that was required. It was said that the sheriff had failed to take this into account.

 

14.         Counsel for the appellant in particular referred to paragraph 35 of the sheriff's decision which was in the following terms:

"[35] The defenders consider they are prejudiced in their defence for a number of reasons. These include unavailability of witness, one of whom left the company over five years ago and who cannot now be traced and three witnesses who left the company and who have not yet been traced; two available witnesses but whose recollection of events after such a long period of time is likely to have deteriorated; the inability to trace most of the subcontractors referred to on record; the lack of access to the defenders' e-mail system; and the difficulty of the defenders locating records on their old system from 2005."

It was the appellant's position that this was not the case. The appellant himself had carried out over the few days prior to the appeal a check on the internet of clients of the respondents between 2000 and 2002. Using the internet he had been able to locate the majority of those on the list 5/2/2 of process. It was said that it was a major concern that, from the information that the appellant had been able to obtain, there appeared to have been a measure of deception about the information put forward to the sheriff. It was suggested witnesses would be able to be traced. As far as the mileage claim was concerned, this could have been investigated at the time the claim was put forward when the summons was served. The main officials in the respondents' organisation were still available. In any event, it was said 90% of the evidence was paper based - paper which was generated for the defenders and respondents. A list of witnesses produced for an earlier proof by the respondents had included Ross Giles, a Mr Pendleton, a Mr Brown and Shona Dalgleish, all of whom worked for the respondents' organisation. It was understood that they were all available.

 

15.         As far as the mileage claim was concerned, it should have been checked at the time it was made. As far as the profit share claim was concerned, it would not require witnesses. Chris Giles would be able to speak to that. As far as payment of commission is concerned, Chris Giles and Shona Dalgleish would be able to speak to that. It was however conceded that these submissions were not made to the sheriff. It was suggested that if witnesses had been asked at the time the claim was intimated about the position, they would have had no difficulty in giving information. The appellant had carried out an exercise trying to identify witnesses with whom he dealt during the last few days and this had thrown up contact details. This showed a different situation from that recorded at paragraph 35 of the sheriff's note.

 

16.         It was submitted that the respondents, being insurance brokers, were required to keep records to comply with the Financial Services Authority for some six years. It was submitted that investigations should have been completed when the proof was allowed in 2005. It was submitted the respondents ought to have had no difficulty locating their records in 2005. Records should have been kept in view of the fact this was known to be a live cause. It was submitted the defenders and respondents were not prejudiced by potential unavailability of witnesses. In 2004 a list of witnesses had been lodged by the respondents which contained the names of four persons working in the office. It was suggested there had been no change between then and now to make other witnesses essential. It was submitted the case could be dealt with on the basis of the respondents' accounting records. There was little scope for prejudice.

 

17.         I was referred to the case of Hepburn v Royal Alexandra Hospital NHS Trust supra where the Lord President stated at paragraph 42:

"Further, I am not persuaded that the prejudice occasioned to the respondents is such that a fair trial of any obligation in reparation incumbent upon them or either of them cannot take place."

He continued at paragraph 43:

"As to Dr Webster, he is available. He was precognosed for the reclaimer in the presence of the respondents' solicitors in January 2007. It was noted that he then said that, the reclaimer's case being unusual, he had a clear recollection of it. The whole medical records relating to the reclaimer are available. Insofar as the case against Dr Webster now stands essentially on what advice he gave, or failed to give, to the reclaimer, there may be a measure of prejudice. Again, however, it must be doubtful if his recollection of precise conversations, unassisted by notes ... would have been different if asked about it six years ... rather than 121/2 years after the event. Evidence can no doubt be adduced as to Dr Webster's usual practice at the time in relation to the giving of advice. The reclaimer, on whom the onus of proof again rests, will require to satisfy the Lord Ordinary that the requisite advice was not given to her. I am not persuaded that there is a substantial risk that the second respondents would be so prejudiced that no fair trial will be possible."

In the case of Kidd v Grampian Health Board 1994 SLT 267, which was also a medical negligence case, it was held that the delay did not affect the issues which could be determined from the medical records.

 

18.         In this case the sheriff had concluded at paragraph 37:

[37] It is not possible in my opinion to say for sure that a fair trial is impossible in this case but I am of the view there is substantial risk that would be the case."

He then stated:

"However the defenders are entitled to lead witnesses and make investigations in response to the case on record."

It was suggested that investigations would normally be made during the development of the pleadings. The appellant was currently now relying on the amended record which was lodged on 17 August 2005. He did not propose to further amend. The existing amended record had been with the appellant since 17 August 2005.

 

19.         The respondents accordingly had notification of the appellant's case since at latest August 2005. It was suggested there was at this date no substantial risk that a fair trial would be impossible. The appellant disputed the information said to have been given by the respondents to the sheriff and recorded at paragraph 35. Four principal witnesses who had been with the company were still available. The appellant himself had been able, using the internet, to find forwarding addresses in respect of many of the witnesses with whom the appellant had dealt, in particular the subcontractors referred to on record.

 

20.         It was accepted that the submissions to me at appeal bore little relationship to the argument placed before the sheriff. There were four grounds of appeal lodged on 7 March 2011. These had been subject to amendment. However the appellant now only relied on the original fourth ground of appeal which is in the following terms:

"In reaching his conclusion that any delay resulted in a "substantial risk" that "a fair trial is impossible in this case" the sheriff relies on the fact of the anticipated need for future amendment by the pursuer. This does not address the issue of the impossibility of a fair trial on the existing pleadings or why the defenders would be prejudiced by requiring to respond to specific issues in evidence arising from analysis of documentation which the defenders themselves had produced."

It was the appellant's principal submission that, as a result of the decision not to proceed with a further Minute of Amendment, the issues which would be considered at proof had been before the respondents since at the very latest August 2005. The respondents' case ought to have been investigated and prepared at that time. There was no prejudice by the lapse of time. It could not be said that there was substantial risk that a fair trial was impossible in this case.

 

Submissions for the defenders and respondents

 

21.         It was properly pointed out on behalf of the respondents that the argument presented at appeal was fundamentally different from that before the sheriff. A list of witnesses which involved persons in the employment of the defenders had been produced in respect of a proof set for July 2004. Since then there had been two further Minutes of Amendment. There was a need to contact witnesses as to how insurance policies came to be in place with European subcontractors and what part the appellant had played in the setting up of these policies. The appellant claimed commission in respect of policies he had arranged for European subcontractors, but it was the respondents' position that, when the appellant had left their employment, the paperwork had been "a mess". If the appellant claimed he was due commission as a result of his endeavours on behalf of the respondents, it was necessary to contact people at the insurance companies and the clients themselves. The paperwork of the appellant at that time was "a mess". Submissions had been made to the sheriff to the effect that there would have been difficulty contacting insurance company staff and European subcontractors who had been involved with the appellant in 2000-2002. Even if they could be contacted, their memory was likely to be vague with the passage of time. As far as insurance company staff were concerned, although this had not yet been checked, there was a possibility they might be able to be traced. However, it was unlikely that they would be able to have clear recollections of events so long ago. Of the 26 European subcontractors in November 2010 three had been located, three seem probably to have been located and there was possible leads on a further four. There were no leads in respect of 11 and two were out of business. It was submitted that this should be seen against a background where the defenders had originally interrogated their system and had decided that there should be no further payments to the appellant. Whether it was economic for the respondents to carry out detailed investigation had to be seen against a situation where there had been three amendments, three debates discharged, two proofs fixed and discharged and then a proof allowed on a date to be afterwards fixed. The appellant had proceeded with a specification of documents in 2005, but had not sought to have a commissioner appointed to deal with the respondents' paperwork. The appellant had not sought to have a proof fixed until November 2010.

 

22.         The respondents had been criticised for not interviewing witnesses in 2005. Even if they had been precognosed then, it is not certain that their memory now, some six years later, would be as certain. It was submitted that the sheriff had been correct to take the view that, after the lapse of time of some 10 years, the recollections of witnesses on such small matters as whether meetings had taken place and how business had been introduced would be likely to have faded. That would cause prejudice to the respondents.

 

23.         It had been argued by the appellant that, in any event, all the matters could be seen on paper and witnesses were not needed. There were three sets of schedules. However it was not accepted that the paper produced proved anything at all. What was produced were working documents of the respondents' business. The fact that they were working documents meant that they relied on other documents and the recollection of witnesses. Spreadsheet 5/2/2 of process was prepared by the respondents. It was work in progress. There were other spreadsheets at 5/5/8, 5/5/9 and 5/5/10 and 5/7/1 of process. Spreadsheets were not finalised documents. A specification of documents had been approved. If the appellant was not satisfied with the documents produced - and all that he had been given was work in progress - he should have asked for a commissioner to be appointed. A commission in diligence could then have been carried out. There were difficulties for the respondents as far as other documents and records were concerned. The respondents' computer system had become obsolete. There was dispute about what the European subcontractors had been told by the appellant. As far as the mileage claim was concerned, there would be difficulty at this late stage getting anyone to recall whether or not a minor meeting had taken place on a particular date 10 years ago which the appellant had attended. If a proof was to proceed, they would need to locate and precognose witnesses on the minutiae of what had taken place between 2000 to 2002. There would require to be a line by line examination of various claims by the appellant which at this late date would be quite impossible. It was inconceivable that there would not be deterioration of a witness' recollection of these types of events after 10 to 12 years. There was accordingly prejudice to the respondents.

 

24.         It was submitted that the cases of Hepburn and Kidd to which the appellant had referred were both cases which involved medical records which were not disputed. The issues related to an expert's interpretation of these records. It was suggested that to compare that type of exercise with the type of exercise the sheriff would be engaged in here did not make sense. In this case, as was set out in the note of argument no 28 and the revised note of argument no 31 for the respondents, documentation which had been produced was of a working nature, incomplete, and was part of an ongoing discussion. The contents were in dispute and could not now be interpreted because of the inaccessible e-mail system. It was the respondents' position that the appellant's averments on commissions due to him were completely unintelligible and would require line by line examination at proof. This would have to be done by witnesses whose evidence on such minutiae would be bound to be unsatisfactory in view of the lapse of time. The respondents would thereby be prejudiced.

 

25.         The sheriff records at paragraph 34, which I have set out in full in paragraph 5 of this note, that the appellant seeks £57,566.73 in respect of a mileage claim, a profit share claim, and payment of commission. The sheriff then records at paragraph 35 that the respondents consider they were prejudiced in their defence for a number of reasons. These include unavailability of witnesses, recollection of events by witnesses after such a long period of time, inability to trace some of the subcontractors referred to on record, lack of access of the respondents to the e-mail system, and the difficulty of the respondents locating records on their old system from 2005. The sheriff recorded in paragraph 36 the position for the appellant that, while recollection may have faded over time, there was sufficient documentary evidence available to allow a fair trial, difficulties of recollection could be taken into account in assessing credibility and reliability of witnesses. It was the appellant's position that the respondents would not be prejudiced in conducting their defence at proof.

 

26.         However, having narrated these issues, the sheriff then concluded at paragraph 37:

"It is not possible in my opinion to say for sure that a fair trial is impossible in this case but I am of the view that there is a substantial risk that would be the case."

It was submitted on behalf of the respondents that the sheriff had reached his conclusion in paragraph 37 primarily on the issues canvassed in paragraphs 34, 35 and 36. It was only after this conclusion had been reached that he went on in paragraphs 38 to 41 to deal with the question of further amendment, which was then said by solicitor for the appellant to be essential. He properly concluded that the respondents would be placed at a significant disadvantage in trying to present their defence to a case of which they had not received notice some 10 years after the event. However, the principal point was that the sheriff had indicated that it was the issues set out in paragraph 35 that had persuaded him to reach his conclusion in paragraph 37 that there was a substantial risk of a fair trial being impossible. The issue was further exacerbated by the desire for further amendment. However, that was not essential to his decision. In respect of the fourth ground of appeal recorded at paragraph 20 is concerned, the sheriff's decision did address the issue of the impossibility of a fair trial on the existing pleadings. The sheriff's decision had been made in paragraph 37 before he considered the question of amendment

 

27.         As far as the information given to the court about the appellant himself carrying out investigations regarding subcontractors at this time, it was said this had revealed only contact details. This did not mean (a) that the witness was actually there and (b) whether any witness could remember anything about minor events a decade ago. There was little distinction between the position now and the position before the sheriff - the difficulty of tracing witnesses and their recollection after a decade.

 

28.         Solicitor for the respondents pointed out that his submissions at appeal were on similar lines to those presented to the sheriff. I was given access to the written submissions which had been given to the sheriff and solicitor for the appellant on 11 November 2010. These written submissions record that the appellant is a former employee of the respondents whose employment was terminated by them. He claimed unpaid sums in mileage, profit share, commissions and policies "sold" and bonus on same. The respondents' position was that the appellant was materially in breach of contract. He was therefore not entitled to seek the contractual remedies he sought. His esto case was that the sums sued for were materially inflated. It was the respondents' position that the appellant claimed mileage for meetings he had not attended, such as those he could not have attended as he was on leave at the time (and thus submitted a fraudulent mileage claim). It was said he engaged in providing false (or at least not properly vouched) information to insurers in an attempt to obtain insurance at lower rates for a group of potential customers (who were subcontractors of the Haulier Currie European). This included at least once incident of alleged forging the signature of an underwriter. It was the respondents' position that each line item of the appellant's claims (whether on bonus or mileage) of which there are pages of claims, carried with it a separate factual background which could not in any way be subjected to a "fair trial" after such a great period, especially within the period of an inaction at the hands of the appellant which had occurred since 2005.

 

29.         Specifically, the respondents submitted in writing before the sheriff that they were prejudiced by the following matters:

(1)          Location of witnesses. One of the respondents' witnesses on the list for the proof allowed in May 2004, David Pendleton, had left the company five years ago. It was believed he could be located. This was not necessarily the case with other witnesses. The appellant's case had expanded in the level of detail of individual line item claims since 2004. It was the respondents' view that any list of witnesses in the case may require to include significantly more staff members from the Dumfries office and potentially some of the alleged customers of the appellant. In regard to co-workers, a further five potential witnesses had left the respondents during the period since 2002, with some having left in 2005 before it was clear they may be required as witnesses. It was not yet clear whether three of them could be traced and precognosed. In respect of the other two, they could be locatable but may not be inclined to assist. In any event, even if all could be located and were prepared to assist, given the passage of time, it seemed entirely likely that the witnesses would remember little of events which may have seemed insignificant at the time some ten years ago (such as holiday leave of the appellant) in which they had not required to consider since then. With regard to the subcontractors of Currie European, of those 26 listed by the appellant, the respondents had attempted to trace them through internet and internet directory searches. Three appeared located. A further three were probably located. There were no leads on 11 and nothing significant on a further three. There was clear evidence that two of these were definitely out of business. One of these, R Dover was the subject of a specific bonus commission claim of £3,000. The respondents have long since been aware that Mr Dover ceased to trade prior to 2002. It was submitted there was a genuine prejudice to the respondents as to potential lack of witnesses.

(2)          Deterioration of witnesses' memories over the intervening period. It was submitted witnesses' memories of events deteriorated significantly over time. Evidence required of the matters on record relied significantly on witness evidence on the interpretation of documents, discussions, specific visits and actions by the appellant, his colleagues and potential customers. There was a specific issue as what instruction may have been given to him by Chris Giles. It was submitted there was simply no way the court would be able to judge the reliability of such events 10 years down the line, with a fallow period of at least five years since the matters were last considered with the witnesses.

(3)          Records and documentary evidence. Through the natural progression of technology the respondents did not have access to their e-mail system from 2001 anymore. They were not to know that this would be required as at September 2005. With regard to their computer records, these may be accessible although they are on an obsolete machine.

(4) As far as the commission schedules were concerned, it was emphasised that they were work in progress schedules which change from month to month. Commission would depend on whether payments were made by clients. Scrutinising them line by line a decade after the event would severely tax any memory.

 

30.         I was referred to the case of Tonner v Reriach &Hall 2008 SC 1 at paragraph 121 of the Opinion of the Court:

"From the point of view of the courts themselves, it is common experience in Scotland that litigation of stale claims tend to take significantly longer than litigation that proceeds when memories are reasonably fresh and relevant material is ready to hand. Unnecessarily lengthy litigation prevents the timely access of other litigants to the courts and, from the point of view of the judge, the task of reaching a just decision is less easy when bogged down in a morass of uncertainties."

It was submitted that this case was stale. Memories were not fresh. It would be significantly difficult to do justice between the parties. It was submitted the sheriff was correct in exercising his discretion in holding that there would be prejudice in this case proceeding at this stage.

 

31.         I was also referred to the case of Newman Shop fitters Ltd v M J Gleeson Group plc 2003 SLT (Sh Ct) 83 at paragraph 32 where Sheriff Principal I D Macphail, QC opined:

"The pursuers' counsel also said that the pursuers would have difficulty similar to the defenders at proof; but if so, that consideration only emphasises the problems that the court would have in achieving a fair consideration of the issues of fact: there is likely to be extreme difficulty in deciding which version of the facts is to be preferred, and thus a serious risk of reaching an unjust result, or producing an unfair trial. I have no doubt that in view of the importance of establishing the course of events on site and the difficulty in doing so in the absence of the contemporary records and the witnesses to whom I have referred, the defenders have been and would be seriously prejudiced by the pursuers' inordinate and unexplained delay ..."

It was submitted that the same considerations applied to the issues in this case.

 

32.         It was the respondents' position that in the whole circumstances the sheriff had exercised his discretion reasonably. In paragraph 37, on the basis solely of the submissions made to him in respect of difficulties of accessing witnesses and productions and the possible deterioration of witnesses' memories regarding a series of minor matters which occurred more than a decade ago, the sheriff had concluded that there was a substantial risk that a fair trial would be impossible. He had taken this view before going on to consider the further prejudice which would have resulted from yet another Minute of Amendment being lodged. That matter was not essential to his decision. I should refuse the appeal.

 

Decision

 

33.         The position adopted on behalf of the appellant at the appeal before me was very substantially different from that adopted on his behalf before the sheriff. It was conceded before me that there had been inordinate and inexcusable delay on the part of the appellant. The sheriff's conclusion in this respect was not challenged. Before the sheriff the appellant's position had been that there required to be amendment and that the appellant's case could not proceed without such an amendment. At the time of the debate before the sheriff, the amendment remained work in progress. A substantial Minute of Amendment and an inventory of productions with a very bulky bundle of productions were lodged with my clerk on Friday 24 June. The appeal was heard on Monday 27 June. At the appeal hearing counsel for the appellant indicated that the appellant had accepted his advice that the Minute of Amendment and inventory of productions should be withdrawn and the case proceed on the basis of the amended record which had been lodged with the Sheriff Clerk at Dumfries on 17 August 2005, almost six years ago.

 

34.         The only ground of appeal which was argued before me was ground 4 in the note of appeal which stated.

"In reaching his conclusion that any delay resulted in a "substantial risk" that "a fair trial is impossible in this case" the sheriff relies on the fact of the anticipated need for future amendment by the pursuer. He does not address the issue of the impossibility of a fair trial on the existing pleadings nor why the defenders should be prejudiced by requiring to respond to specific issues in evidence arising from analysis of documentation which the defenders themselves had produced."

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35.         Having heard the submissions of parties which I have recorded, I do not consider that the sheriff relied on the fact of the anticipated need for future amendment by the appellant in reaching his decision. In paragraph 37 of his note the sheriff decided that there was a substantial risk that a fair trial would be impossible in this case. The material on which he based that decision is as follows:

"[33] I am therefore of the view that there has been inordinate and inexcusable delay on the part of the pursuer in this case. The next question is whether that delay has resulted in unfairness specific to the factual circumstances, including the procedural circumstances, of the action. ...

[34] The latest version of the record appears at number 30 of process. The pursuer seeks payment of £57,566.73 said to be remaining due to him when employed by the defenders as a Senior Accounting Executive in the period 2000 - 2002. Approximately £2,000 is made up of a mileage claim and a profit share. The vast majority of the sum sued for comprises a claim for payment of commission said to be owed to the pursuer in respect of inter alia new business undertaken by him.

[35] The defenders consider they are prejudiced in their defence for a number of reasons. These include unavailability of witness, one of whom left the company over five years ago and who cannot now be traced (it appeared at the debate that this should have read "who likely can now be traced") and three witnesses who left the company and who have not yet been traced; two available witnesses but whose recollection of events after such a long period of time is likely to have deteriorated; the inability to trace most of the subcontractors referred to on record; the lack of access to the defenders' e-mail system; and the difficulty of the defenders locating records on their old system from 2005.

[36] In reply, Mr Bryce submitted that while recollections may have faded over time, there was sufficient documentary evidence available to allow a fair trial. If the case went to proof, difficulties of recollection could be taken into account in assessing credibility and reliability of witnesses. He did not think the defenders would be prejudiced in conducting their defence at proof.

[37] It is not possible in my opinion to say for sure that a fair trial is impossible in this case but I am of the view there is substantial risk that would be the case."

In my view the respondents were correct to submit that the sheriff was stating that, for these reasons alone, there was a substantial risk that a fair trial was impossible. At that time in his Note the sheriff had not considered the effect of the proposal by the appellant to amend. This was subsequently discussed by him in paragraphs 38 to 41 inclusive. In my view, while the amendment question is compelling in allowing the conclusion that there would be a substantial risk that a fair trial would be impossible, the fact of the matter is that the sheriff had reached this conclusion before he went on to consider the question of amendment.

 

36.         It is my opinion that the sheriff was correct to do so. This is not a case which can be decided solely on the basis of documentation which is currently available. It is for the appellant to prove his case. This is an action for payment; it is not an action of account, reckoning and payment. The evidential difficulties, as far as the mileage claim is concerned have been well illustrated in the appellant's response to a claim by the respondents that he was on holiday on the date for which the claim was made. His position was said to be that he either did the journey in the course of his holiday or got the date wrong. This illustrates exactly the type of difficulty a line by line examination of minute details of a claim 10 years old would face.

 

37.         Similarly it is quite clear that the spreadsheets regarding commission, to which I have referred, could only be regarded as work in progress. They are not conclusive. Witnesses would have to be called to speak to each transaction. It may or may not be possible to find these witnesses, but after at least 10 years it is doubtful if any evidence adduced from them on what would now be seen as very minor matters of detail would be worthy of proper consideration. The lack of access of the respondents to their e-mail system of 2001 and the difficulty in locating records going back to the period 2000 to 2002 is obvious. In my view it is significant that, if the appellant attached weight to records said to be held by the respondents, there should have been a motion to the court to appoint a commissioner in respect of the specification of documents which had been granted. A full commission and diligence could have been carried out. Alternatively, he could have proceeded by way of an action of account reckoning and payment.

 

38.         The written submissions placed before the sheriff on 11 November 2010, which I have summarised in paragraphs 28 to 30 hereof, are in my view as relevant in this appeal as they were before the sheriff. I attach weight to them.

 

39.         This case in my view can be distinguished from the cases of Hepburn and Kidd to which I was referred. In these cases there were detailed reliable medical records which could provide the basis of any expert testimony which was to be led. There would be no prejudice. This case would involve a line by line examination of the appellant's claims a decade after a series of very minor business transactions had taken place. I think the job of the presiding sheriff at any proof in such circumstances to adjudicate in respect of testimony of this nature so long after the event would be virtually impossible. It would of necessity require lengthy and detailed examination of what were in effect stale issues. I take the view that the sheriff was correct to reach the view that there was a substantial risk that a fair trial was not possible. The submissions made to me on behalf of the appellant do not cause me to alter that conclusion.

 

40.         There is a further point which was not raised by parties, but which I consider is incumbent upon me to raise as Sheriff Principal of this Sheriffdom. I have a statutory duty to secure the speedy and efficient business of business in the Sheriffdom. As the sheriff recorded in paragraph 10 of his note, Rule 15.7(5) of the Sheriff Court Rules 1993 provide:

"In determining whether or not to dismiss an action under paragraph (4), the court shall take account of the procedural consequences, both for the parties and for the work of the court, of allowing the action to proceed.

I reach my decision to refuse this appeal without considering this issue, but I wish to comment on it as follows. Dumfries Sheriff Court is an exceptionally busy sheriff court. The two resident sheriffs have very full diaries. The Sheriff Clerk has the greatest difficulty in allocating civil business, and in particular diets of proof, to allow members of the public who wish their affairs adjudicated on by the court to receive an expeditious determination. In this case the appellant asks the court to fix a proof on a myriad of minor business issues some ten years after the events have taken place when witnesses' memories will have deteriorated and accurate and concise evidence difficult to obtain. Having considered the issues involved, the amended record, and the detailed productions lodged, it is clear that this proof would take a substantial number of court days. The period involved to consider the evidence would be much greater than would have been the case if the hearing had taken place when witnesses' memories were fresh.

 

41.         Dumfries Sheriff Court does not exist to provide a substantial amount of court time to a litigant whose case has been in court for almost nine years before he attempted to bring matters to a head. This is particularly so when he did not take any action for over five years from 20 October 2005. The appellant has amended three times. Debate has been allowed and discharged three times. Two proofs have been fixed and discharged. A further proof has been allowed on a date to be afterwards fixed but no steps were taken by the appellant to have such a hearing fixed for five years. A very substantial amount of court time has already been taken up with this case. I do not see why other litigants who are before the court wanting early resolution to their disputes should be denied access to Dumfries Sheriff Court by the hearing of the case at the instance of a litigant who has conducted himself in the way I have described. I have to say that, if I had any doubt about refusing the appeal on the basis on which I have done, those doubts would have disappeared by a consideration of Rule 15.7(5) in the particular circumstances of this case.

 

42.         The appeal fails. Expenses will be awarded to the respondents. I was asked to certify the appeal as suitable for the employment of counsel. Although the point is academic as the appellant has been unsuccessful, I do take the view that the issues involved are important and I am prepared to certify the cause as suitable for the employment of counsel.