28 March 2019

The White Rabbit’s plaintive cries in Alice in Wonderland also struck a chord over the question of lateness and the consequences of this in the reported Scottish case of Anji Mannas v Chief Constable of the Police Service of Scotland.

In Mannas, the pursuer was a passenger in a vehicle involved in a road traffic accident in January 2001. The case was raised in early 2004 to avoid limitation and was quickly sisted (stayed) to allow the pursuer’s legal aid application to be processed. Legal aid was granted in May 2004, yet for reasons unknown, the case remained sisted until January 2017 when it was recalled by the defenders.

The question was whether the court should dismiss the claim or allow it to proceed. The rules of court provide that it may dismiss a claim if it appears that (1) there has been an inordinate or inexcusable delay on the part of any party or the party’s agent in progressing the claim, and (2) such delay results in unfairness specific to the factual circumstances, including procedural circumstances, of that claim. The test is twofold and both parts require to be met before the court will consider exercising its discretion to dismiss a claim.

In Mannas, the court was not persuaded there was a substantial risk that justice could not be done. The onus of proof rested on the pursuer and it would be she who would be prejudiced if she could not prove her claim. Moreover, the liability issue was in short compass and it ought not, in the court’s view, to be difficult to determine the reliability and credibility of the witnesses to fact. The uncertainty of the expert opinion on quantum secured by the parties (over whether there was a causal link between the pursuer’s psychiatric symptoms and the accident) would also, in the court’s view, operate against her. It was not persuaded there was a real risk to the defenders that justice could not be done and therefore refused the application.

At first glance, it is somewhat surprising that a claim sisted for 13 years was not dismissed on the grounds of inordinate or inexcusable delay. However, when one delves deeper into the case, the court’s decision can be understood on the facts. Nonetheless, the apparent latitude afforded to the pursuer sits in contrast to the strict application of the rules by the court in Moran v Fryssinet, 2015 in which the Inner House (appeal court) of the Court of Session upheld a discretionary decision of the judge at first instance to grant decree against the defenders arising from their agents’ procedural failure to lodge a valuation of the pursuer’s claim timeously.

It is evident from Mannas that the court will use its power to dismiss claims as a last resort. From the defenders’ perspective, the bar is set high to succeed with applications to dismiss claims on the basis of inordinate or inexcusable delay. If faced with a claim which has been sisted for a prolonged period, a careful analysis of the specific problems/prejudice caused by the delay will require to be undertaken if there is to be hope of persuading the court that the ability to conduct a fair trial has been materially compromised.

Contact: Mark Hastings, Associate mfh@bto.co.uk T: 0141 221 8012