Ever thought about the commonalities between dormant volcanoes and sisted courtroom proceedings?
You may think, as most people do, that court cases are wrapped up quickly and the matters at hand are solved in no time. A principle of Scottish civil procedure is that a case should be litigated continuously until it is resolved. Although we wished that’s how the justice system functions, that is often not the case.
When parties desire to pursue out-of-court settlement negotiations or make further inquiries, for example, a trial may “fall asleep” or go dormant without being resisted. However, some crown court delays mean the case will go on for a very long time. These court cases are likely to continue to be silent but could always “erupt” at a later time, disrupting the ministry of justice.
These civil cases continue to be dormant as long as the victims and defendants stay inactive. However, it becomes active again when one of them decides to get access to justice. If the time taken for these cases exceeds the average wait time, and no significant improvements are made till then, a defendant can do one of two things: They can either be waiting years for any process or dismiss the case and avoid backlog. Post the pandemic, the law society and rules have been constantly evolving to make the justice process easier.
Changing case law and nightingale courts precedent
Tonner v. Reiach and Hall  CSIH 48 ED dealt with a claim of professional negligence brought in 1988 against the defence, an architectural firm, in relation to a building contract. According to the pursuing move, the action was instantly sisted (a court order, typically by agreement, temporarily stopping the process). Then, parties were having occasional settlement discussions. The pursuers had to recall the sist in 2005. (this means they wanted the case to become active again). The architects said the lawsuit would be unduly prejudiced if it went forward and requested a decision of absolvitor in their favour for “inordinate, inexplicable, and unjustifiable delay.”
The architects were successful on appeal because the court determined that huge delays in this case seriously endangered their position. It was not fair or reasonable to expect that the architect, who retired in 1999, would have kept his notes and files for such a long time after such a long wait and with little activity for several years, according to Lady Smith’s analysis of the factual circumstances.
In Hepburn v. Royal Alexandra Hospital NHS Trust  CSIH 71 1st Division, the defence were unable to convince the county court that their case had been unfairly delayed. In 1998, the pursuer brought a claim against the first and second defenders, and the claim was quickly dismissed. The pursuer asserted that the Consultant doctors had not adequately informed her of the hazards associated with a medical procedure. Despite several inquiries from the defender’s agents over the course of six years, nothing had changed. During that time, the pursuers failed to attempt to obtain hospital records, hired experts to prepare reports, one of the witnesses passed away, and new lawyers were hired by the pursuers. In 2007, the case was once more in the news.
At the outset, the defenders were successful. The pursuer filed an appeal of the ruling, and the reclaiming motion was approved on the grounds that giving the decree of dismissal in this case would deny the defendants a fair trial and that they would not suffer any harm if the case went to trial on the merits. The defence team’s actions were taken into consideration by the court, including their earlier filing of defences and the witness availability of one of the consultants.
Both Tonner and Hepburn were ruled based on the common law and the court’s inherent authority to handle issues even in the absence of clear-cut principles. The procedure for seeking for an order of dismissal when there is a “…inordinate and unjustifiable delay by another party or another party’s representative in pursuing [an] action, resulting in unfairness” was revised as a result of these cases (Rules 15.7 OCR and 21A.1 Court of Session).
The Court of Session’s Rule 21A.1, which is comparable to Rule 15.7 in the Sheriff Court, is the backdrop for the proceedings in the case of Abram v. British International Helicopters Ltd  CSIH 2nd Div. In 1990, the helicopter carrying the pursuer from the oil ring where he worked crashed into the North Sea, giving rise to a personal injury lawsuit. For the purposes of settlement talks, this move was promptly insisted. Before the activity resumed, there were 8 years without any additional procedures. After that, there were further years of back and forth over procedural issues without any real advancement on the factual position. In July 2012, the defence filed for a decree of dismissal and was granted their request. The pursuer’s appealed this verdict, and the court upheld it after finding that the pursuer or his agents were substantially to blame for the delay when the entire time period was considered.
The court concluded that the delay had been unfair because the material that would eventually be submitted was probably going to be lacking and ambiguous in key areas. As a result of the anticipated deficiencies at a proof, the court’s ability to evaluate the evidence would have been impaired and it would be unable to render justice in the case.
The court further emphasised that rather than, say, out-of-court settlement negotiations, their major focus in deciding whether there has been a delay is focused on what has actually happened in the court process.
The court found that unfairness resulted from the delay as future evidence to be presented was likely to be incomplete and vague in important respects. Therefore, the court’s ability to analyse the evidence would have been compromised and it would be unable to do justice in the cause because of the predicted inadequacies at a proof.
The court also highlighted that their primary focus in determining whether there has been delay is based on what has actually happened in the court process rather than out of court settlement discussions, for example.
Abram’s main points on delay and unfairness are as follows:
- The likelihood of evidence being misplaced, destroyed, or lost rises with delay.
- Potential witnesses’ memories may become hazy as a result of huge backlog.
- Every case must be evaluated in light of its unique facts.
- The onus is on the defender to push for progress since bringing an action puts a defence on notice and gives them the chance to look into the facts and capture crucial information.
- If an action should be dismissed, the expense incurred and the toll it takes on the high court’s time are important considerations.
So, should a defender sit tight or take action?
What bias there is to a defence in the action proceeding should be considered as a suitable place to start when considering the decided cases and court rules? The existence of “unfairness” is essential. The policy goal underpinning the Right to a Fair Trial is connected to the regulations on Undue Delay (i.e. that such unfairness creates a substantial risk that a fair trial is no longer possible).
Regard should be given to the quantity and calibre of the evidence, the accessibility of the witnesses, and uncertainties regarding the witness’s memory of the evidence. A defence attorney should take into account any reliable expert reports. It is also obvious that, given the conditions, the delay must be significant. There have been lapses of 6, 9, and 25 years in the aforementioned situations.
The defender’s actions—or lack thereof—should likewise be given consideration, as the court will do so. It might be more economical from a business standpoint to “sit tight” and wait. The likelihood that the evidence is missing or insufficient increases with the amount of time that has passed since the “loss” or “breach” occurred. However, organisations and people may find a pending legal action disturbing and want the situation to be resolved.
Our solicitors have extensive expertise in appearing in court and defending clients from all around Scotland and beyond.