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More on "enough is enough"

16 July 07

Latest civil cases, including dismissal following delay; discharge of diet; caution for expenses; res judicata; summary applications; appeal; antisocial behaviour orders

by Lindsay Foulis

Power to dismiss

The question of “enough is enough” has been considered further in detail in the recent Inner House decision Tonner v Reiach and Hall [2007] CSIH 48. This was an appeal from a decision of Lady Smith. She had refused an application to dispose of an action which the pursuer had taken no steps over a considerable period to prosecute.

In a very full decision the court considered the issues arising. The first was whether the Court of Session had an inherent power to determine a pending action comparable to the English procedure of striking out through want of prosecution. Their Lordships noted that courts had the indispensable power to do whatever was necessary to discharge the whole of their responsibilities. Comparing the relative brevity of the Court of Session Act 1988 with the length of the rules of court, they concluded that the Act could not be the sole measure of the court’s procedural powers. They had no doubt that the court had an inherent power to regulate procedure. The real issue was whether, if proceedings were raised competently within the appropriate period in terms of the Prescription and Limitation (Scotland) Act 1973, a court had power to dispose of the action after a lapse of time in the interests of justice.

Their Lordships noted that the fact that an action was raised within a prescriptive period did not, by itself, prevent the sustaining of a plea of mora. They saw no reason why the circumstances founding a plea of mora only related to the period prior to an action being raised. Further, the trend in prescription legislation was to reduce the periods. The fact that parliament had not enacted any provision dealing with delay post-commencement of action might have been because parliament assumed such a power existed. Further, the court considered it must have power to bring an action to an end if satisfied that a point had been reached at which justice could no longer be done.

The court then considered whether it was necessary for the power to be crystallised in a rule of court. The circumstances in which the power could be exercised were not equivalent to abuse of process, i.e. disobedience of a peremptory order or conduct amounting to an abuse of the process of the court. Their Lordships considered it unnecessary for the power to be so crystallised. First, the court drafted rules of court and was not bound by any decision of the Rules Council. Further, the rules of court were not all-inclusive. Much of the law relating to practice was not contained in the rules. If the court felt that it was just to end an action in circumstances, it was illogical for it to be unable to do so because the rules were silent. Article 6 of the European Convention on Human Rights required courts to have the power to conclude litigation within a reasonable time. The rules of court did not prescribe comprehensively the nature of orders the court could pronounce.

Turning to the criteria for such an order to be made, their Lordships observed that whilst actions were still largely party-driven in Scotland, parties did not have an unqualified right, once an action was raised, to proceed in as leisurely a manner as they thought fit. Insurance against old claims was increasingly more complex and expensive, and the advent of electronic communication and archiving carried dangers of accidental disposal of information. The longer litigation was in dependence, the greater the danger of the claim becoming stale. This often increased the length and complexity of litigation. There were many examples of a court refusing late developments in litigation, for instance amendment. It was irrelevant that there might be no remedy against a pursuer’s advisers, and that the defender might also have let the action lie undisturbed. The onus of prosecuting an action by its very nature fell on the pursuer. The appropriateness of the exercise of the power was largely a question of fact and circumstance, but it was a draconian power. This required the court to be clear as to the reasons for its exercise in a particular case. However, there would inevitably require to be inordinate and inexcusable delay, taking account of the delay as a whole. The later an action was raised, the more severe a view might be taken. As an aside, the decisions in the criminal context on article 6 might be worth consideration at least as of illustrative value.

The court had then to consider the consequences of such a delay. In addition to delay, there had to be an added element of unfairness specific to the particular factual context. That context would include the procedural context, for example how much further procedure was required to bring the action to a conclusion. Their Lordships considered that the application to end the proceedings should be by minute, and if successful the action should be dismissed.

Discharge of diets

As a postscript to the observations about litigation being largely party-driven, I refer to the observations in McDonald-Grant v Sutherland and Co [2007] CSIH 54 following the discharge of an Inner House appeal at a late stage. The allocation of a diet to parties necessarily resulted in other parties in other actions being deprived of the opportunity to be heard on that date. This applies to all diets and should be borne in mind by parties. Even a joint motion to discharge a diet may not be granted by the court. The grant or refusal of such a motion is at the discretion of the court. One of the factors to be taken into account is the matter which troubled their Lordships. If some of the issues considered by Lord Gill’s civil courts review are specialist judges and allocation of a case to a judge at a certain stage, then it seems to me that for such a system to work, litigation will require to be far more judge-driven as opposed to party-driven. This surely means the discharge of diets assigned will be more difficult. To do otherwise will not be realistic from a resource point of view.

Caution for expenses

In Albyn Realisations (Festival Cars) Ltd v Levenfleet Ltd [2007] CSOH 106, Lord Brodie reiterated the principles governing caution for expenses. The grant of such a motion was discretionary, dictated by the interests of justice. An order for caution could be made against a company at common law as well as in terms of s 726(2) of the Companies Act 1985. Only in special circumstances would a defender be ordered to find caution; these might include an inability to meet previous expenses awards, a history of prior misconduct in the litigation, and the strengths or otherwise of the defence. Whilst in this case there were considerable strengths in the pursuers’ position – in particular the defences did not coherently disclose why decree should not be granted in favour of the pursuers – these matters were more appropriately debated in a motion for summary decree. The motion was refused.

Res judicata

In Taylor v Yorkshire Building Society 2007 GWD 19-334 Sheriff Principal Dunlop overturned the sustaining of a plea of res judicata in an action for recovery of bank charges when a previous action had determined the position regarding later charges on the same account. The deduction of charges constituted a succession of wrongful acts each actionable, albeit the basis of action in each case was the same. The sheriff principal also questioned whether such actions were better remitted to the ordinary cause, as extended pleadings might well be of assistance.

Summary applications

The importance of instituting proceedings by the appropriate procedure is emphasised in Hakeem v Secretary of State for Work and Pensions, Hamilton Sheriff Court, 1 May 2007. An action for suspension and interdict was raised as an ordinary action as opposed to a summary application. Whilst it was competent to transfer an action from one roll to the other, Sheriff Principal Lockhart agreed that for this power to be exercised, there had to be no prejudice suffered by the other party. Further, the nature of the claim and the remedy sought had to be made clear to that party. The error required to be formal as opposed to substantial. Finally, the procedural rule contravened required to be directory as opposed to mandatory.

In the present action the sheriff principal concluded that three of these four tests were not met. If raised as a summary application, caution would have been ordered. This had been avoided by the action being raised as an ordinary action. The procedure would have been speedier and less expensive. The pursuer had failed to take steps to remedy the problem despite it being highlighted in a rule 22 note. The sheriff principal further considered the application was incompetently raised as an ordinary action notwithstanding a crave for interdict. This crave was clearly ancillary to the crave for suspension.


In B v Sister Bernard Mary Murray [2007] CSIH 39 the Inner House looked at the effect of RCS, rule 38.8(1) which has its sheriff court equivalent in s 29 of the Sheriff Courts (Scotland) Act 1907. The fact that a subsequent appeal had the effect of reviewing all previous interlocutors did not automatically mean that such prior interlocutors could be successfully challenged as a result of the later appeal. If a party had proceeded, or knowingly allowed the other party to proceed, on the basis that the interlocutor was not challenged, the court might not countenance a subsequent challenge.

Antisocial behaviour orders

In Highland Council v Dewar, Inverness Sheriff Court, 13 June 2007, Sheriff Pyle considered aspects of an antisocial behaviour order which was sought, in particular the terms of s 4(6) and (7) of the Antisocial Behaviour etc (Scotland) 2004 which deals with consideration of the prohibitions sought as necessary for protecting persons from further antisocial behaviour. Sheriff Pyle, by reference to dicta in R (McCann) v Manchester Crown Court [2003] 1 AC 787, noted that the purpose of such an order was not punishment but prevention of further behaviour. If the prohibitions sought went further than affecting acts which were in any event illegal and restricted a person’s liberty, Sheriff Pyle considered it was necessary to aver why such wider restrictions were required.

The usual caveat applies.