The fallen shall not rise again
9 Dec 04
Fallen action cannot be revived by court dispensing power
A solicitor who inadvertently allows a Court of Session action to fall, cannot ask the court to excuse the failure using the court's dispensing power.
An Extra Division of the Inner House yesterday refused an appeal by Philip Brogan, whose solicitor failed to lodge the summons in his action for damages against O'Rourke Ltd, for calling within the period allowed by the court rules.
Mr Brogan's solicitor had failed to realise that new rules in personal injuries actions required this procedure within three months and a day of signeting, compared with a year and a day from expiry of the period of notice as allowed in other actions.
Temporary Judge Coutts had ruled that once an action fell in this way it ceased to exist and there was no scope for asking the court to exercise its "dispensing power". The appeal court agreed, and in doing so overruled a line of contrary decisions beginning with McDonald v Kwok in 1998.
Lord Reed, delivering the opinion of the court, said: "Where the summons has not called within the period specified by the rule, the automatic consequence is that the instance falls. That expression means, in the words of Lord President Inglis [in the 1882 case McKidd v Manson], that 'the summons is at an end' and 'has no [legal] existence whatever'. It follows, in Lord President Inglis's words, that the action 'ceases to be a living process'. It is therefore incompetent thereafter to apply to the court under rule 2.1 to enable the summons to call."
The only option, the court said, was to raise a new action.
The full opinion can be read at www.scotcourts.gov.uk/opinions/PD25803.html .