Scottish Sheriff Court Decisions

SHERIFFDOM OF LOTHIAN AND BORDERS AT EDINBURGH

 

[2016] SC EDIN 40

A4239/98

JUDGMENT OF SHERIFF KATHRINE EC MACKIE

 

In the cause

 

Mrs Razia Sultana formerly trading as IRUMS TAILORING 269A Leith Walk Edinburgh and now residing at House No 1688 Street No 26 Sector I-10/2 Islamabad Pakistan

Pursuer;

 

Against

 

General Accident Fire & Life Assurance Corporation plc a Company incorporated under the Companies Acts and having a place of business at 114 Atholl Crescent Edinburgh EH3

Defender:

 

Act: Party, with interpreter

Alt: Taylor BLM Solicitors Glasgow

 

Edinburgh,      April 2016

The Sheriff having resumed consideration of the cause on the opposed motion of the defenders, number 7/3  of process, grants same, dismisses the action and finds the pursuer liable to the defenders in expenses, restricted to 80% thereof, as taxed, allows an account to be given in and remits same when lodged to the Auditor of Court to tax and report certifies  Mr DJ Pointon of Dr JH Burgoyne & Partners  Olympic House 142 Queen Street Glasgow as a skilled witness who prepared reports for the defenders.

 

 

 

 

NOTE

 

Introduction

 

[1]        The pursuer craves payment from the defenders, her insurers, of the sum of £40,000 representing loss sustained by her as a result of a fire in her premises at 269A Leith Walk Edinburgh on 10^th March 1996.  The defenders deny an obligation to indemnify, averring that the fire was deliberately set by the pursuer or someone on her behalf with an intention to defraud the defenders.  Esto the fire was not set deliberately, the defenders aver that the pursuer was in breach of the conditions of the policy.  In any event the sum craved is averred to be excessive.

[2]        At a hearing on 31^st March 2016, assigned by order of the court, the defenders moved in terms of Rule 15.7 of the Ordinary Cause Rules to dismiss the action on the ground of inordinate and inexcusable delay on the part of the pursuer in progressing the action leading to unfairness to the defenders and for the expenses of the cause.  The motion was opposed by the pursuer.

[3]        The defenders’ agent lodged their motion, number 7/3 of process, and detailed fully, for the benefit of the pursuer and the court, the grounds therefor.  A copy of the motion was intimated to the pursuer by email and following receipt thereof she lodged notice of opposition.  At the hearing the pursuer was unrepresented but was assisted by an Urdu interpreter provided by the court.

[4]        Before considering parties’ submissions I propose to set out a chronology of the procedure in this action.

 

 

Chronology of Procedure

 

[5]        The Initial Writ was served upon the defenders on 22^nd September 1998.  A Notice of Intention to Defend was lodged and the case appointed to an Options Hearing on 5^th February 1999.  The case was continued to a further Options Hearing on 5^th March 1999 when, on the pursuer’s unopposed motion, the case was sisted for investigations. 

[6]        On 8^th December 2000, on the pursuer’s unopposed motion, the sist was recalled and the case appointed to a further Options Hearing on 19^th January 2001.  On that date the Record was closed and parties were allowed a proof before answer on a date to be afterwards fixed.

[7]        On 28^th May 2001 a diet was assigned to take place on 22^nd October 2001 and the four ensuing days.

[8]        On 8^th October 2001, following receipt of a letter from the pursuer’s agents withdrawing from acting on her behalf, a peremptory diet was fixed to take place on 18^th October 2001.

[9]        On 18^th October 2001 the diet of proof assigned to commence on 22^nd October 2001 was discharged and a further proof was allowed to be assigned on a date to be afterwards fixed.

[10]      On 10^th March 2016 the court, ex proprio motu, assigned a by order hearing to take place on 31^st March 2016.

[11]      On 29^th March 2016 the defenders enrolled a motion, number 7/3 of process, to dismiss the action in terms of Rule 15.7.  On the same date the pursuer lodged notice of opposition thereto.

[12]      On 31^st March 2016 parties were heard on the defenders’ opposed motion and thereafter the court made avizandum.

 

Relevant Rule of Court

Dismissal of action due to delay

15.7     (1)       Any party to an action may, while that action is depending 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.

(2)        A motion under paragraph (1) shall—

(a)        include a statement of the grounds on which it is proposed that the motion should be allowed; and

(b)        be lodged in accordance with rule 15.1.

(3)        A notice of opposition to the motion in Form G9 shall include a statement of the grounds of opposition to the motion.

(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.

 

 

Defenders’ Submissions

[13]      The defenders submit that the absence of any progress of the action or procedure between 18^th October 2001 and the court’s interlocutor of 10^th March 2016 amounts to inordinate and inexcusable delay on the part of the pursuer.  “Inordinate” should be measured against the time that an ordinary case of this type would take to be determined, which it was submitted would not be 14 years or more.  The defenders had not been provided with any excusable reason for the lack of progress in the action.  Following the interlocutor of 18^th October 2001 the defenders, by letter dated 19^th December 2001, wrote to the pursuer seeking clarification of her position and in relation to the fixing of a further diet of proof.  The defenders received a response from a Mr Malik purporting to represent the pursuer although it appeared that he was not a solicitor.  The defenders wrote to Mr Malik on 31^st January 2002 intimating that they expected to receive some meaningful information about the pursuer’s intentions within 14 days.  No further communication was received from Mr Malik or anyone else on behalf of the pursuer until emails were received recently from a Mr Mohammad who was believed to be the pursuer’s son.  On 12^th February 2016 the defenders sent an email to Mr Mohammad advising their position, namely that they would be opposed to any diet of proof being fixed now, and recommending that legal advice be obtained.  Mr Taylor advised that the defenders had made an informed decision not to take any steps to fix a diet of proof after 18^th October 2001. 

[14]      Mr Taylor acknowledged that there were two aspects to be determined by the court and that the second was that the delay had resulted in unfairness.  The defenders submitted that they had suffered unfairness in relation to the whereabouts of witnesses, the deterioration of witnesses’ memories, the destruction of real evidence and quantification of loss.  It was submitted that any one aspect of unfairness would be sufficient.

 

Whereabouts of Witnesses

[15]      Recent enquiries made by the defenders’ agents in relation to those witnesses named in the defenders’ list of witnesses, number 13 of process, have disclosed that a number are untraced, being Sam McIntosh, Ken Spreadbury, Alex Campbell, Station Officer Emerson and James Smyth.  One witness, Martin Shearer is believed to have died in about November 2010. 

[16]      Having regard to the pleadings at any proof there would require to be an exploration of what had occurred on the evening of the fire.  The importance of the evidence of Station Officer Emerson was apparent when it was understood that he was the first officer to attend.  Although he had prepared a report, number 6/27 of process, that was not particularly detailed and there would need to be an exploration of what he had found on his attendance at the premises.  The witnesses McIntosh and Spreadbury were to speak to the particular alarm system in the pursuer’s premises and the readings from the system.  Their evidence was significant in view of the pursuer’s pleadings about the setting of the alarm prior to the fire and the defenders answers thereto.  Number 6/13 of process was a printout from the system which was understood to have been annotated by Mr Spreadbury.  Evidence as to whether the alarm was or was not set prior to the fire would go to the credibility and reliability of the pursuer.  The witnesses’ company did not appear to be trading.  Although enquiry agents had traced a Ken Spreadbury it was not known whether this was the same individual. 

[17]      While the defenders’ agent did not concede that the evidence of the witnesses Martin Shearer and James Smyth would not be significant he had difficulty after the lapse of time in being able to advise what would have been their role at proof.  Mr Shearer had been with the firm of loss adjusters who had been involved in the investigations on behalf of the defenders and Mr Smyth was employed by the Norwich Union Insurance Company.  It was considered that the latter may have had a part to play in relation to the terms and conditions of the pursuer’s policy with the defenders.

[18]      Alex Campbell was a loss adjuster.  He prepared a report.  He is untraced.

[19]      A further witness, Ronnie Maxwell, has been successfully traced.  He had been involved in the taking of statements including from the pursuer and her daughter.

 

Deterioration of Witnesses’ Memories

[20]      It was accepted by the defenders’ agent that it was not uncommon in cases of this nature for witnesses to speak to events which had occurred some years before proof.  This action was raised well before the expiry of the quinquennium and proof had been fixed to take place 5½ years after the event.  Material such as contemporaneous notes, which had formed the basis of reports, which might assist witnesses’ recollections was unlikely to be available now.  It was accepted that such material, if relevant, ought to have been recovered and produced prior to the proof fixed to take place in October 2001 although it was submitted that the significance of such material was less 5½ years after the event than it might be some 20 years later.  Even if the witnesses could be traced their recollections were likely to be poor at best.  Mr Maxwell, who had been traced, had indicated that he had no recollection of the case.  This could be unfair to the defenders if at proof there was a dispute about the terms of any statement taken by him. 

 

Destruction of Real Evidence

[21]      As part of their investigations and preparations for proof the defenders instructed Mr Pointon of Dr JH Burgoyne & Partners to inspect the premises and prepare a report on the circumstances and probable cause of the fire.  Two reports were prepared, numbers 6/11 and 6/28 of process.  Mr Pointon, who prepared the reports, retained parts of the alarm system pending conclusion of proceedings.  Enquiries made of the company revealed that those parts of the alarm system were disposed of in about 2007 along with their file following an enquiry of the loss adjusters who mistakenly believed that the case had been concluded.  This would result in unfairness to the defenders. The primary evidence of the relevant parts of the alarm system not being available secondary evidence may be inadmissible. Mr Pointon’s expertise was in relation to analysis of forensic evidence of the fire scene and the cause of the fire.  In his report number 6/11 he had indicated a need for information to be obtained about the operation and records of the alarm system, which were outwith his expertise.

 

 

Quantum of Loss

[22]      The pursuer’s averments of loss were not known and not admitted by the defenders.  It was not possible for the defenders’ agents to determine whether the purported vouching produced by the pursuer would be sufficient.  That evidence would require to be interrogated.  Evidence in relation to loss would be anticipated from one of the loss adjusters on the defenders’ list of witnesses.  It was submitted that there was unfairness to the defenders because of their concern that the “duplicate” vouchers produced by the pursuer would not be sufficient and after this lapse of time, in addition to the issue of deterioration of memory, the likelihood of any other documentation being available was remote.

 

Authorities

[23]      Mr Taylor referred to Ross-v-Giles Insurance Brokers 2011 GWD 26-581; Fox-v-United Biscuits (UK) Ltd 2014 GWD 22-413 and Abram-v-British International Helicopters Ltd [2014] CSIH 53. 

[24]      By way of clarification Mr Taylor pointed out that the equivalent rule in the Court of Session, Rule 21A, is in identical terms to that of Rule 15.7.  In Ross-v-Giles Insurance Brokers both the Sheriff and the Sheriff Principal had approached the motion in that case by applying the test as set out in Hepburn-v-Royal Alexandra Hospital NHS Trust 2010 SLT 1071, namely, whether there was a substantial risk that a fair trial was not possible.  He referred to the opinion of the Lord President in Hepburn at paragraph 32.  Therein his Lordship referred to an earlier decision in Tonner-v-Reiach & Hall [2007] CSIH 48.  In Tonner the court opined that in addition to delay there must be an added element of unfairness specific to the particular factual context and account should be taken of the procedural consequences of allowing the action to proceed.  Accordingly there was seen to be a degree of tension between the decisions in Hepburn and Tonner although these cases predated the introduction of Rule 21A.   Mr Taylor also drew attention to the observations of the Sheriff Principal in paragraphs 40 and 41 about the effect upon the court of allowing the action to proceed.  Parties in Ross had not raised the issue and Mr Taylor considered that he was not in a position to make any submission in terms of Rule 15.7(5), which may be a matter for the court.  He suggested that it may be of significance that while 5 days had been allocated for proof in 2001 it was likely that considerably more time might be necessary in 2016 particularly if there were issues about the loss of primary evidence and the possibility of a proof within a proof regarding admissibility. 

[25]      In Fox-v-United Biscuits (UK) Ltd the Sheriff Principal considered the different tests applied in Hepburn and Tonner and observed that the approach favoured by the judges in Tonner had found its way into Rule 15.7.  Accordingly he rejected criticism that had been made of the Sheriff for failing to have regard to a fair trial test when no such test appeared in the Rule.

[26]      Mr Taylor observed that the tension between the decisions of Hepburn and Tonner were resolved in Abram-v-British International Helicopters Ltd.  He also observed that since the decision involved the interpretation of a Court of Session rule it was not binding upon me but was highly persuasive.  In Abram, the Lord Justice Clerk, as he then was, had set out, at paragraph 24, that the application of the rule required a two stage process.  Firstly, it had to be established that there had been inordinate and inexcusable delay and that that delay results in unfairness.  Secondly, the court required to consider “whether as a matter of judicial discretion the power to dismiss ought to be exercised”.  The first step was an exercise of judgement not discretion.  The Lord Justice Clerk also set out in paragraph 28 how the court’s discretion ought to be exercised.  He recognised that the power to dismiss was draconian and that accordingly the test was a high one.  The power to dismiss involved the court being satisfied that a just determination of the dispute is no longer possible.  The judge must be satisfied that “there is at least a substantial risk that justice cannot be done or, to put it another way, that a fair trial cannot occur”.

[27]      In conclusion Mr Taylor submitted that the criteria were met in this case and that there was a substantial risk that justice could not be done.  He renewed his motion for dismissal and also moved for the expenses of the action and certification of Mr Daniel Pointon Fire Investigator of JH Burgoyne & Partners as a skilled witness.

 

Pursuer’s Response

[28]      The pursuer intimated that she did have reasons for the action not being progressed between October 2001 and March 2016.  She requested more time to obtain the assistance of a solicitor.  In all the circumstances that request was refused. 

[29]      The pursuer said that her son was very ill and she had taken him from the Royal Hospital for Sick Children in Edinburgh to Pakistan at the end of 2001.  At that time she had granted a Power of Attorney in favour of Mr Malik for the purpose of engaging the services of a solicitor.  She returned from Pakistan in about 2005.  A number of solicitors had been approached without success.  Some had taken time to consider her file of papers before advising that they were unable to assist.  The pursuer referred to letters sent with a view to attempting to engage solicitors in June 2002, June 2003, March 2008, October 2014 and December 2015.  Prior to 2008 Mr Malik had undertaken the search for a solicitor on her behalf.  Since then she and Mr Malik had made occasional enquiries to identify a solicitor.  Her son continued to suffer from ill health and she returned to Pakistan each year for several months at a time.  The pursuer said she was unaware that she could represent herself until she met a lawyer in London following her return from Pakistan in November 2015.

[30]      The pursuer acknowledged the potential difficulties with regard to the witnesses.  She was unsure how many of her witnesses she would be able to find.  She had obtained a report from a firm, Brass Tacks, and they would be available.  However she was not in a position to pay for any witnesses to attend court.  She was unable to explain why no list of witnesses had been lodged on her behalf in preparation for proof in 2001 or why the report from Brass Tacks had not been lodged as a production.

[31]      The pursuer also acknowledged that it might be difficult for witnesses to remember events after some 20 years.  Her former insurance broker was available and he had visited her premises regularly.  He had checked the stock and would be able to speak to a valuation of the same.

[32]      The pursuer submitted that justice could be done.  Documents were available including the reports prepared by the Fire Services and the police, the alarm system logs and the policy of insurance.  With regard to the policy conditions she had been unaware of their terms until 14^th March 1996 when the policy was issued.

 

Defenders’ Reply

[33]      The defenders’ agent advised that neither a copy of a Power of Attorney nor any list of solicitors contacted had been exhibited and accordingly he was unable to make any comment thereon.  He submitted that at some point in the past 14 years, which point had, on any view, long since passed, the pursuer should have realised that progress had to be made with the action and that in the absence of any solicitor she required to represent herself.  While the pursuer said that it was only in November 2015 that she found out she could represent herself the defenders’ agent submitted that following the withdrawal of her solicitors the interlocutor of 8^th October 2001 was pronounced, and served upon the pursuer, in which notice was to be given that the pursuer required to appear personally or be represented at the hearing on 18^th October 2001 failing which the action may be dismissed.  In the interlocutor of 18^th October 2001 “PP” was noted against the person acting on behalf of the pursuer, which was understood to mean, “personally present”.  Accordingly the pursuer knew at that time that she had the capacity to represent herself.  Further, when the defenders’ agents wrote to the pursuer on 19^th December 2001 they did so to an address at 65 Craigentinny Avenue Edinburgh.  In that letter they requested that the pursuer advise if she had instructed, or intended to instruct, solicitors and who they were, and requested that if she had not she advise any dates when she would not be available to deal with the action.  The defenders’ agent submitted that it was likely that the pursuer knew in 2001 that she could represent herself, and indeed had done so. 

[34]      The pursuer conceded she could have difficulty in tracing witnesses and that their memories may have faded over time.  There was no explanation why the evidence of the pursuer’s insurance broker in relation to the question of the stock was not produced before 2001 if it was deemed to be material.  The defenders may also suffer unfairness if they did not know who the pursuer’s witnesses were to be and were unable to take precognitions from them.

 

Discussion

[35]      In this case the defenders ask the court to apply Rule 15.7 of the Ordinary Cause Rules and to dismiss the action with expenses and certification of their skilled witness.  In so far as Rule 21A.1 of the Rules of the Court of Session is in the same terms as Rule 15.7 the decision in Abram-v-British International Helicopters Ltd, while not binding upon this court, is highly persuasive.  In that decision the tension which existed between the decisions in Tonner and Hepburn was resolved.  In any event, as Lord Carloway observed, the decisions in Tonner and Hepburn pre-dated the introduction of Rule 21A.1 in the Court of Session and were concerned with the inherent power of the court to dismiss an action through want of prosecution and not with the interpretation and application of the rule.  It appears to me that the approach adopted in Abram is the approach which ought to be adopted in this court to the application of what is essentially the same rule.  It would be unfortunate and confusing if rules in the same terms were to be applied differently in the different courts.

[36]      The rule, in each court, sets out the criteria, which must be established before the court can consider whether to exercise its discretion to dismiss the action or allow it to proceed.  Firstly, there must be established that there has been inordinate and inexcusable delay in progressing the action and, secondly, that the delay results in unfairness, specific to the factual circumstances.  If those criteria are established then, and only then, should the court consider exercising its discretion whether to allow the action to proceed or to dismiss it.  Dismissal is recognised to be a draconian measure.  As Lord Carloway said in Abram at paragraph 28 “the power to dismiss should only be exercised if the judge is satisfied that there is “at least” a substantial risk that justice cannot be done or put another way that a fair trial cannot occur if the proceedings are allowed to continue.”.

[37]      With regard to the first criterion, it is now some 20 years since the cause of this action occurred. Between the interlocutor of 18^th October 2001 allowing parties a further proof before answer and the interlocutor of 10^th March 2016 ordering the hearing on 31^st March 2016 almost 14½ years have elapsed without any progress or substantive decision being made in the action.  It is perhaps an extreme example of the dangers of allowing a proof but leaving dates to be afterwards fixed.  I note that when proof was first allowed it took parties some 5 months or so to have the dates fixed.  The pursuer took no steps following the interlocutor of 18^th October 2001 to have further dates fixed. The defenders’ agent candidly admitted that, after a brief correspondence with the pursuer and a Mr Malik on her behalf, the defenders took a decision not to initiate the fixing of dates.  Regrettably, although since about 2010 measures have been in place to investigate cases where there has been no activity, or a sist, for 6 months or so, the court took no steps to make enquiries of parties until the case was brought to my attention in early March 2016.  Whether the delay is calculated from the date of the cause of the action or the date of the interlocutor of 18^th October 2001, in my opinion, it would be impossible to regard it as anything other than inordinate, giving the word its ordinary meaning.  The pursuer did not attempt to suggest otherwise. 

[38]      In considering whether the delay is inexcusable it is necessary to have regard to the whole circumstances and not just the part played by one of the parties.  As Lord Carloway said in Abram at paragraph 30 “Although the pursuer accepted that it was primarily for him to progress his case, the court does not accept either that, in the modern era, there is no onus on the other party to attempt to press for occasional progress.  On the contrary, if that other party is eventually to invoke the power under RCS 21A.1(5) or otherwise to plead that his Article 6 rights are being infringed by the court’s failure to determine the case within a reasonable time, his actions must come under scrutiny also.”.  In this case the defenders seek to invoke Rule 15.7.  Accordingly their decision to take no steps to initiate the fixing of dates for proof and to wait for the pursuer to make progress is a factor to be taken into account.  The defenders have contributed to the delay by failing to take any steps to have dates for proof fixed or at least to bring to the court’s attention their inability to persuade the pursuer to engage in discussions for that purpose.  It is also true that the court ought to have brought the circumstances of this case to the attention of a Sheriff long before March 2016.

[39]      The pursuer’s explanation for her lack of progress of the action was that she had been unable to find a solicitor who was prepared to act on her behalf.  At best it appears that any search for a solicitor was carried out sporadically.  For substantial periods of time the pursuer was residing in Pakistan.  Indeed the pursuer is designed in the Initial Writ as residing in Islamabad.  From papers provided to the court it appears that following the withdrawal of her previous agents in October 2001 an address in Edinburgh was given.  It was to that address that the defenders directed their enquiry about the pursuer’s intentions in December 2001.  More recently the pursuer has provided the court with an address in London.  Following the hearing on 31^st March 2016 the court received an email on behalf of the pursuer advising that she had returned to Pakistan.  No formal steps have been taken to amend the pursuer’s designation and accordingly for the purposes of the action she remains designed as residing in Pakistan.

[40]      With the use of modern technology periodic residence in Pakistan would not render the instruction of a solicitor impossible.  In any event the pursuer, on her account, was in the United Kingdom for several months each year and thus available for any meetings considered necessary for proper instruction of a solicitor.  Little effort appears to have been made by the pursuer to engage a solicitor if the dates of letters given by her are accurate.  She referred to only 5 letters sent over a period of 14 years.  An examination of the court process discloses that in about April 2009 the court received an email purportedly on behalf of the pursuer seeking copies of the papers.  Following a brief exchange in relation to the procedure for disclosure to a third party a letter dated 24^th June 2009 was received from UK Law Ltd, Legal Consultants, Essex.  In that letter it was stated that they acted on behalf of the pursuer and were instructed to request “the parties’ lists of disclosure or record” and that they would be instructing counsel on receipt of the documents and a review of the file.  A copy Power of Attorney in favour of Mr Mukhtar Ali Malik, Advocate was enclosed.  The document bears to be signed by the pursuer and dated 15^th April 2009.  It bears to give power to “plead and act in the suit/petition, on my behalf, to make or present plaints, written statements, applications, writ petition, written replies, amended plaints, amended written statements, amended applications and amended written replies, execution petition, either personally or through an other Advocate, to appear as a witness or produce any other witnesses, to summon the witnesses, to deposit expenses for the summoning of witnesses, to give oral or documentary evidence, to apply for copies of the case and to receive copies of the case on my behalf and in my name.”  The power given to Mr Malik would appear to be considerably more than simply the power to engage a solicitor on behalf of the pursuer as suggested by her.  Copies of the Record and the interlocutor of 18^th October 2001 were sent to UK Law Ltd without charge.  With the exception of a request in about 2013 to confirm that the action was still in dependence and other inconsequential emails with various clerks, no further contact was received from the pursuer or anyone on her behalf until about November 2015.  At that time an email was received in which a request was made for the court to assist in obtaining a solicitor for the pursuer.  In about February 2016 a further email was received in which that request was repeated but in addition a request was made for the court to fix a date for proof before the end of March 2016.  The case was brought to my attention then and the hearing on 31^st March 2016 was fixed.

[41]      It appears that the pursuer has made little sustained effort to obtain the services of a solicitor during the past 14 years or so.  It seems inexplicable that no solicitor, if properly instructed, would have failed to assist the pursuer throughout that period.  It also seems inexplicable that if a solicitor was not willing to act on behalf of the pursuer that that solicitor would not have advised the pursuer of alternative sources of advice and her right to conduct the case on her own behalf or, if not so advised, that the pursuer would have failed to ask whether she could do so.  When her previous agents withdrew from acting on her behalf the pursuer was served with an interlocutor dated 8^th October 2001 in which it was stated that “she may appear personally or be legally represented” on 18^th October 2001.  Following receipt of that interlocutor the pursuer appeared unrepresented.  It may be that the pursuer would have preferred that her case be conducted on her behalf by a solicitor but it appears that at least on 18^th October 2001 she understood that she was able to appear before the court unrepresented.    In my opinion when considering the whole period of delay in this case it cannot be excused by any difficulty encountered by the pursuer in engaging a solicitor to act on her behalf.

[42]      The next criterion is whether the delay results in unfairness in relation to the factual circumstances of the action.  It was acknowledged by the pursuer that there was likely to be difficulty now not only in tracing witnesses for both parties but also in their recollection of events of 20 years ago.  No list of witnesses was lodged on behalf of the pursuer, a factor which the pursuer was unable to explain.  Some productions were lodged comprising the pursuer’s policy with the defenders, a copy of the Fire Report completed by Station Officer Emerson, copy letter from Lothian & Borders Police and duplicate invoices.  The form of Fire Report requires a number of boxes to be ticked with minimal additional information.  In answer to the question about the most likely cause of the fire the box ticked is “accidental”.  However when further information is requested there has been inserted “As in 5.1 (most likely cause of fire) 75% “malicious ignition 25%”.”  It is probable that any proof would require Station Officer Emerson to explain the entries made by him, particularly in relation to the most likely cause of the fire.  With regard to the defenders’ case on breach of the conditions of the policy Station Officer Emerson’s evidence about what was in the premises at the time of the fire would be significant.  Station Officer Emerson has not been traced by the defenders.  His absence at any proof is likely to have a significant impact on the quality of evidence in relation to the issues in dispute.  Other witnesses on the defenders’ list of witnesses remain untraced including Sam McIntosh and Ken Spreadbury.  Their evidence in relation to the alarm system and the information gleaned from it about the setting or otherwise of the alarm prior to the fire would be important to test the pursuer’s credibility.  There are annotations on the report lodged which would require explanation.  The accuracy of statements taken at the time of the fire may be challenged and it is said that the person who took them, Ronnie Maxwell, has no recollection now of doing so.  While some documentation is available and in particular the reports prepared by Dr JH Burgoyne & Partners and by the defenders’ loss adjusters, Crawford Brocklehurst, due to the lapse in time the witnesses’ recollections of relevant details, even if assisted by their written reports, are likely to be diminished.  Given that in October 2001 the action had reached the stage of proof evidence which parties considered necessary should have been obtained by then.  Further evidence, such as any contemporaneous notes by the likes of Station Officer Emerson, ought to have been recovered if considered relevant.  The unfortunate destruction of the evidence held by Dr JH Burgoyne & Partners, namely parts of the alarm system, may give rise to issues about the admissibility of secondary evidence and would also deny both parties the opportunity of re-examining the parts to supplement or replace evidence no longer available.  In relation to quantum, the pursuer has produced a number of documents, the majority of which are stated to be duplicates.  In the absence of any list of witnesses it not known who would give evidence in relation to loss, other than the pursuer.  It was suggested by the pursuer that her insurance broker might be able to do so.  There may be some doubt about the quality of any such evidence after a period of 20 years or so.  In any event, it is likely that after the lapse of time in this case any attempt by the pursuer to introduce witnesses not previously disclosed would be opposed and the subject of some argument.  This would be particularly likely in relation to any attempt now to introduce a report from any skilled witness. 

[43]      The court’s ability to analyse the evidence and to determine, on balance of probabilities, whether the fire was caused accidentally or deliberately with the intention to defraud the defenders, whether the pursuer was in breach of the conditions of the policy by reason of what items were contained within the premises or what the pursuer did or did not do at the time of the fire, and what loss, if any, was sustained by the pursuer, in my opinion, is likely to be compromised because of the absence of material witnesses, real evidence and the poor recollections of such witnesses as are still available. 

[44]      The very substantial delay in this case, in my opinion, results in unfairness in relation to the factual circumstances. 

 

Decision

[45]      As stated above, dismissal of an action in terms of rule 15.7, rule 21A.1 or indeed in terms of the court’s inherent power prior to the introduction of the rules is a draconian measure and is not a decision to be taken lightly.  The test, as set out by Lord Carloway in Abram, is a high one and involves the judge considering all the circumstances and deciding whether there is “at least” a substantial risk that justice cannot be done. 

[46]      The only procedural step left to be taken in this case is that of the proof.  For the reasons set out above and the very considerable difficulties with such evidence as would be possible now, in my opinion, it is probable that justice cannot now be done.  It is probable that most, if not all, evidence is likely to be vague and uncertain and that is an unsatisfactory basis upon which to determine the issues in dispute.  

[47]      In terms of rule 15.7(5) the court also requires to have regard to the procedural consequences for the court as well as the parties of allowing the action to proceed.  The defenders’ agent, while referring to the provision, did not feel able to comment on the procedural consequences for the court except to observe that in October 2001 five days had been allocated for proof.  He suggested that considerably more time might be required now, particularly if there were issues raised about the admissibility of any evidence.  It appears to me that Mr Taylor was right to be conservative about the amount of time required for any proof.  Indeed if the pursuer continues to act on her own behalf any proof is likely to be extended in time to accommodate not only her inexperience but also her language difficulties and the need for interpretation.  It is, as observed by Sheriff Principal Lockhart in Ross and as is set out in section 27 of the Courts Reform (Scotland) Act 2014, for the Sheriff Principal to ensure the efficient disposal of business in the Sheriff Court.  Edinburgh Sheriff Court is an extremely busy court exercising not only the usual jurisdiction of a Sheriff Court but also all Scotland jurisdictions in extradition and personal injury.  A number of resident Sheriffs sit in the High Court and Court of Session on a temporary basis and in the Sheriff Appeal Court.  The fixing of a proof where the time required is likely to be substantial would place a significant burden upon court time, which is already much in demand.  It would seem unjust if other litigants were denied an expeditious determination of their disputes because of a lengthy proof in an action where the pursuer, in particular, has delayed making progress for 14 years or so.  There would also be a significant financial burden for the court in the employment of an interpreter for an extended period, particularly at a time when resources are limited.  It is only fair to observe that the expenses, at least for the defenders, would also be increased because of the greater time required for proof now than in 2001. 

[48]      In all the circumstances, having found that there has been inordinate and inexcusable delay which results in unfairness, and being satisfied that there is at least a substantial risk that justice cannot be done, in exercising my discretion, I consider that this action should not be allowed to proceed and should be dismissed. 

[49]      With regard to the question of expenses while the primary responsibility for the delay in this case rests with the pursuer it appears to me that the defenders could have minimised the delay by taking steps to bring the action to court despite the inactivity of the pursuer.  For this reason the defenders should not recover all expenses.  The pursuer should be liable for only 80% of them.  Mr Pointon of Dr JH Burgoyne should be certified as a skilled witness having prepared reports for the defenders.