The recent case of Simon Ross -v- Giles Insurance Brokers Limited yet again highlights the risks of failing to pursue a claim without delay.
The Facts
The case concerned a claim for commission, mileage and profit share by Mr Ross against his former employers, Giles Insurance Brokers Limited ("GIBL"). The action was raised in September 2002. Various sundry and abortive procedures occurred, and, in October 2005, a hearing on the evidence was allowed, with dates to be fixed. Nothing was fixed. The case lay dormant until November 2010, when Mr Ross sought to revive it by asking the court to fix trial dates.
The Arguments
GIBL sought to have the case disposed of, arguing their defence was prejudiced as a result of Mr Ross's delay in progressing the action. In particular, they were no longer able to access their email system; they had difficulty in locating records; some of their key witnesses could no longer be traced; and of those witnesses who were available, their recollection of events some 10 years earlier would likely have deteriorated.
The delay was due to Mr Ross's dissatisfaction with the documentation produced by GIBL following a disclosure exercise. Rather than fix a hearing, he appointed a colleague to examine the documentation and produce a report. Regrettably, his colleague fell ill and Mr Ross performed the analysis, which spanned five years.
The Sheriff was not persuaded by Mr Ross's explanation for the lack of progress in the case for a period of five years and concluded there had been inordinate and inexcusable delay on his part. He then had to consider whether such delay would result in unfairness. Mr Ross had indicated in September 2010 that he would require to amend his claim again, but no amendment had been forthcoming. A further amendment would delay the trial date to around October 2011. Coupled with the witness evidence difficulties and the protracted procedural history, the Sheriff was satisfied unfairness resulted from Mr Ross's delay. Consequently, he dismissed the case and awarded costs to GIBL.
The Appeal
Mr Ross appealed the decision, not in relation to delay, but in relation to unfairness. He no longer wished to amend his claim, and argued that GIBL were not prejudiced as a result of the delay. He had carried out searches on the internet and had managed to trace the majority of the witnesses. In any event, the case would likely turn on GIBL's accounting records. Being insurance brokers, they required to keep records for some six years to comply with FSA requirements. Consequently, there was little scope for prejudice and no substantial risk that a fair trial would be impossible.
GIBL disagreed. They argued that even if they had obtained witness statements back in 2005, which Mr Ross contended they should have done in preparation for trial, there was no guarantee their memories had not since faded. The documentary evidence alone would not prove anything. A fair trial was impossible.
The Sheriff Principal agreed, and said: "This case would involve a line by line examination of the appellant's claims a decade after a series of very minor business transactions had taken place. I think the job of the presiding Sheriff at any proof in such circumstances to adjudicate in respect of testimony of this nature so long after the event would be virtually impossible. It would of necessity require lengthy and detailed examination of what were in effect stale issues. I take the view the Sheriff was correct to reach the view that there was a substantial risk that a fair trial was not possible."
Comment
The message is clear – the courts will not tolerate unjustifiable delay. Failure to progress a claim with due diligence could result in the ultimate penalty i.e. dismissal of your claim plus an award of costs against you. Great news if you are a defender; a disaster if you are the pursuer.
Disclaimer
The material contained in this article is of the nature of general comment only and does not give advice on any particular matter. Recipients should not act on the basis of the information in this e-update without taking appropriate professional advice upon their own particular circumstances.
