6th November 2008 saw the implementation of a new Court of Session rule which clarifies the position in this court regarding delays.
The new rule, in Chapter 21A states that "Any party to a claim may, while that claim is depending before the court, apply by minute for the court to dismiss the claim due to inordinate and inexcusable delay by another party or another party's agent in progressing the claim, resulting in unfairness."
In the past, the issue of delay and the consequences in proceedings in Scotland has been unclear. In Esso Petroleum Co Ltd v. Hall Russell & Co Ltd (No. 2) 1995, the defenders sought for the action to be dismissed due to "inordinate and inexcusable delay" on the part of the pursuers. It was argued that the court had an inherent power to regulate its own procedure and thus would have the necessary authority to dismiss the action. Lord Johnston decided, however, that it would not be competent to dismiss the action on grounds of delay as the Rules of Court regulated procedure and, despite discussing failure to comply with time limits, were silent on delay being grounds for dismissal.
This view by Lord Johnston can be contrasted with the case of Newman Shopfitters Limited v. M J Gleeson Group PLC 2003 in which Sheriff Principal Macphail held that in a case of inordinate delay, the Sheriff was entitled to grant decree in the exercise of the inherent jurisdiction of the court. This approach was followed in McKie v. MacRae 2006 with Lord Glennie ruling that the purpose of the Rules of Court was not to be a comprehensive guide, evidenced by stating: "that the court can act in the absence of a Rule of Court is shown by its power to sist proceedings, whether of consent or in the face of opposition from one or other party." This view was also upheld more recently in the Appeal Court in Barrie Tonner and Another v. Reiach and Hall 2007 S.L.T. 1183.
Therefore, although case law had been leaning in favour of the court having power to dismiss a claim due to delay, the new rules make this crystal clear.
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.
