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Defender fails with "inexcusable delay" plea over 2004 action

4 January 2019

A Court of Session judge has refused to strike out a personal injury damages action on the basis of "inordinate and inexcusable delay", despite the case having been sisted from 2004 to 2017.

Lord Tyre refused the application, by the Chief Constable of Police Scotland in an action brought by Anji Mannas, for dismissal under rule 21A of the Court of Session Rules, as he was not satisfied that there was a substantial risk that justice could not be done.

The case arose from a road accident on 20 January 2001 when the pursuer was a passenger in a car which was turning right at a junction when it was struck by an overtaking police vehicle with its emergency lights and siren activated. Her action was raised in early 2004 and sisted on 16 February for her to apply for legal aid. This was granted in May 2004 but the action remained sisted until January 2017.

The pursuer was not seriously injured physically, but averred that as a consequence of the accident she suffered severe and continuing psychological injuries. She claimed for past and future solatium, past and future loss of earnings, loss of pension benefits, past and future services, and inability to provide services to her disabled daughter. She also averred that an action by another passenger in the car resulted in 2006 in a sheriff finding the police driver 20% to blame and the driver of her vehicle, the third party in the present action, 80% to blame.

On the morning of the hearing of the defender’s motion, it came to light that certain witness statements, were still in existence. These included statements from certain police officers, but not the driver (as the statements formed part of a report to the procurator fiscal), and the driver (and his police passenger) had not latterly been traced.

For the defender it was argued that it was a matter of admission that there had been inordinate and inexcusable delay on the part of the pursuer’s former agents in progressing the action. To proceed now would be to cause unfairness to the defender both in relation to his defence on liability and as regards investigation of quantum, and the court should exercise its discretion to dismiss the claim.

Refusing the application, Lord Tyre accepted that a delay of the length that had occurred in this case "will inevitably create difficulties for all parties to a litigation", through difficulty in tracing witnesses and their evidence becoming less reliable with the passage of time. He continued: "To the extent that these difficulties affect the presentation of the defence, I accept that they introduce an element of unfairness into the proceedings. Despite this, I am not persuaded that the circumstances of this case are such that there is a substantial risk that justice cannot be done."

As regards the circumstances of the accident, contemporaneous witness accounts were now available, which might help witnesses who could be traced to refresh their memories of the incident. "It has to be borne in mind that the onus of proof will rest upon the pursuer. If the court were to find that the evidence was too unreliable to permit critical findings in fact to be made, it is the pursuer who would be prejudiced by failing to prove her claim. The factual issues likely to be canvassed at the proof are in narrow compass, and assessment of the credibility and reliability of witnesses does not appear to me to be an unduly difficult task."

He added that in his view the court would not be entitled to have regard to the outcome of the other action, and it was not a relevant consideration for the purposes of rule 21A that a previous finding of liability had been made.

The situation as regards causation was "admittedly more complex", Lord Tyre stated. "However, it does not appear to be the case that expression of expert opinion on causation has become impossible due to the passage of time... Although these issues are far from straightforward, it does not appear to me that the passage of time has rendered a fair trial impossible." Again, any prejudice was as likely to affect the pursuer's case.

Concluding that the defender's motion should be refused, he commented: "There is clearly, however, a need for this action to be actively managed to avoid further delay." It would be put out by order for discussion of further procedure.

Click here to view the opinion.

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