Court asserts power to end long-delayed actions

"Inordinate and inexcusable" delay could result in dismissal

News, 15 June 2007

The Court of Session has an inherent power to dismiss an action where there has been "inordinate and inexcusable" delay by those bringing it, and does not need specific rules of court to permit this, appeal judges have ruled.

Lords Abernethy and Philip and Sir David Edward gave their ruling in allowing an appeal by Reiach and Hall, architects, and dismissing an action against them by Barrie and Maria Tonner, raised in 1988 over the design and building of a house for the Tonners between 1982 and 1983. Since December 1988 the action had been sisted (a stay of procedure) for negotiations, but these had taken place only sporadically, and nothing had happened between 1998 and 2005.

Different judges at first instance had given different answers to the question of the court's powers in such cases. In the present case Lady Smith held that under the court's rules it was for parties and not the court to seek to limit any delay caused by a sist, and that the absence of a general provision in the court's rules was an indication of an intention not to confer such a power.

On appeal the point was exhaustively argued and in a 164-paragraph opinion the court set out, and dealt with, a series of questions:

Do the Scottish courts have an "inherent power", without legislation, to put an end to a pending action on grounds comparable to those on which the English courts could strike out a pending action for want of prosecution?
If so, is it necessary that it first be enacted as formal rules of court?
If not, what conditions must be satisfied in order for a judge to exercise the power?
If these are met, by what procedure should the court be invited to exercise the power?
If the judge is satisfied that the power should be exercised, what is the appropriate order?
What are the consequences for the present case?

Court not powerless

Lord Abernethy said that although the court knew of no case where the recognised plea of mora (delay) had been given effect after the raising of an action, the court could "see no reason in principle, logic or equity why it should be the case that, without express statutory authority, an action can be brought to an end because of delay occurring before the action is raised but may not, without such authority, be brought to end for like considerations after it has been raised".

The court did not accept that it was powerless to bring an action to an end "if it is satisfied that a point has been reached at which justice cannot possibly be done".

The court also did not accept, as a general proposition, that it could not take any course for which there was no precedent in the absence of a rule of court expressly empowering it to do so. It would not wring its hands and declare itself unable to do justice if satisfied that, because of the conduct of one of the parties, justice could not be done if a case proceeded.

It was common experience, the judges continued, that litigation of stale claims tended to take significantly longer than litigation that proceeded when memories were fresh. It prevented access of other litigants to the court and made it harder for the judge to reach a just decision. Whatever might have been the position in more leisurely times, the court should be prepared in appropriate circumstances to dismiss an action or want of prosecution. "It should, however, be regarded as the option of last resort."

"If ever there was a case..."

The court adopted the formula "inordinate and inexcusable" in defining the delay, "since it emphasises that there are two aspects to be considered: on the one hand, the length of the delay and, on the other, the reasons for it. Both conditions (inordinate delay and inexcusable delay) must be satisfied". In addition, there had to be "an added element of unfairness... specific to the particular factual context".

The proper procedure was by minute and answers rather than ex parte statements on a motion; and the proper order would be dismissal rather than absolvitor (a final decree on the merits) unless the defender established personal bar by mora, taciturnity and acquiescence.

As for the present case, "If there ever has been, in recent times, an action that should be stopped in its tracks now, this is it."

The court's opinion can be read at http://www.scotcourts.gov.uk/opinions/2007CSIH48_.html .