Frances Mclaughlin As Guard Of John Rennie (opinion No. 2) V. Pauline Morrison+esure Services Limited
| Jurisdiction | Scotland |
| Judge | Lord Jones |
| Neutral Citation | [2013] CSOH 168 |
| Court | Court of Session |
| Published date | 25 October 2013 |
| Year | 2013 |
| Docket Number | A417/13 |
| Date | 25 October 2013 |
| OUTER HOUSE, COURT OF SESSION [2013] CSOH 168 | |
| A417/13 | OPINION (NO.2) OF LORD JONES in the cause FRANCES MCLAUGHLIN as guardian of JOHN RENNIE Pursuer; against (FIRST) PAULINE MORRISON First Defender: and (SECOND) ESURE SERVICES LIMITED Second Defender: ________________ |
Pursuer: Maguire QC; L. Milligan; Euan Mackenzie; Balfour + Manson LLP
Second Defender: Murphy QC; Dunlop QC; R Pugh; Simpson & Marwick
25 October 2013
Introduction
[1] This is an action of damages proceeding under the provisions of chapter 42A of the Rules of the Court of Session, in which the sum sued for is £8,000,000. It is brought by the pursuer as the guardian of John Rennie ("Mr Rennie"), by virtue of an order made under the Adults with Incapacity (Scotland) Act 2000. The pursuer avers that Mr Rennie was injured on or about 22 May 2010, when he was standing in Royston Road, Glasgow. Suddenly and without warning, it is averred, the first defender drove a car at him at speed, hitting him and knocking him to the ground. On 19 July 2011, the first defender was convicted of assault to severe injury, permanent disfigurement, permanent impairment and to the danger of Mr Rennie's life. According to the pursuer's averments, Mr Rennie sustained a serious brain injury as a result of which he is immobile, and cognitively impaired. He requires full-time care. The second defender is convened in terms of regulation 3 of the European Communities (Rights against Insurers) Regulations 2002. The pursuer avers that the second defender is directly liable to make reparation to her to the same extent as the first defender.
[2] The case came before me on 11 July 2013 on the pursuer's motion for decree in absence against the first defender, who had not entered appearance, and for summary decree against the second defender, under the provisions of Rule of Court 21.2. The pursuer also seeks an interim payment from the second defender under the provisions of Rule of Court 43. Parties were agreed as to the tests which the court should apply in determining whether it might (i) pronounce summary decree and (ii) ordain a defender to make an interim payment of damages.
Summary Decree
[3] So far as is relevant to this application, Rule of Court 21.2 provides as follows:
"21.2.-(1) Subject to paragraphs (2) to (5) of this rule, a pursuer may, at any time after a defender has lodged defences while the action is depending before the court, apply by motion for summary decree against that defender on the ground that there is no defence to the action, or a part of it, disclosed in the defences.
(2) In applying for summary decree, the pursuer may move the court -
(a) to grant decree in terms of all or any of the conclusions of the summons;
(b) to pronounce an interlocutor sustaining or repelling a plea-in-law; or
(c) to dispose of the whole or a part of the subject-matter of the action.
...
(4) On a motion under paragraph (1), the court may -
(a) if satisfied that there is no defence to the action disclosed or to any part of it to which the motion relates, grant the motion for summary decree in whole or in part, as the case may be; or
(b) ordain any party, or a partner, director, officer or office-bearer of, any party -
(i) to produce any relevant document or article; or
(ii) to lodge an affidavit in support of any assertion of fact made in the pleadings or at the bar."
[4] Having regard to the provisions which I have quoted, it is clear that the court may look beyond the pleadings in determining whether or not there is a defence to the action. In Frimokar (UK) Lt. v Mobile Technical Plant (International) Ltd 1990 SLT 180, Lord Caplan expressed the following views, which I adopt:
"In my view Rule of Court 89B [the predecessor of Rule 21.2] is largely aimed at the dilatory defence and the court is in effect given the power to inquire into the defenders' capacity to present a defence which raises a real issue before allowing the normal protracted procedures of litigation to take their course. The summary decree hearing is different from a debate on preliminary pleas where the relevancy of a defence is tested purely on the pleadings. A hearing in a summary decree motion is more far reaching because the Rules of Court specifically admit material extraneous to the pleadings such as affidavits or productions. Thus the court is concerned not only to test the relevancy of the defence but the authenticity of the defence. However the reverse aspect of the matter is that the court is not confined to the pleadings as they stand at a particular time in testing whether or not there is a plausible defence. The defenders' counsel is right in suggesting that if the court considered that there would be scope for improving a defence by amendment or addition to the pleadings then in terms of the Rules of Court it could be difficult to be satisfied that there is no defence. The court is looking to see if the defenders can present a genuine issue not to test the articulation of that issue. However, I do not agree with the defenders' counsel if she is suggesting that this leaves it open to a defender who cannot at a particular time explain what the defence is to crave the indulgence of the court in case at a later stage the defender can think of something different or better. The question of the defence must be tested at the time when the motion is decided and it is for the defender, before that stage, to be in a position to satisfy the court that there is the framework of a defence available. Of course I am not suggesting that in a suitable case the court might not continue the motion to enable a defender to produce further information, but basically the defender must be able to demonstrate the defence which the court is being asked to assess and if the defence cannot be shown it will not do to say that something else may emerge later. Subject to what I have said however I would agree with counsel for the pursuers that it is not a reason for refusing a motion for summary decree simply that the questions raised are difficult."
[5] In Henderson v 3052775 Nova Scotia 2006 SC (HL) 85, the appellate committee, whose opinion was delivered by Lord Rodger of Earlsferry, said this:
"[14] ... what the pursuer is entitled to seek is summary decree. The very description 'summary' decree indicates that the procedure is intended to be used where the matter can be determined in a summary fashion, without there being any need for a prolonged examination of matters of fact or law. Of course, in practice motions of this kind are likely to take longer than more routine motions: we were told, for instance, that the hearing before the Lord Ordinary had taken the greater part of a day, while the hearing before the Extra Division had taken about a morning. The length of the hearing is likely to depend on such factors as the amount of material to be considered, its nature and how much of it is in dispute.
[15] Rule 21.2 applies where the court is satisfied that there is no defence to the action disclosed in the defences. One reason why a court may be so satisfied is because the defences, taken pro veritate, are legally irrelevant. In such a case the court may sustain the pursuer's plea to the relevancy of the defences and grant decree de plano. But, as Lord Prosser recognised in P & M Sinclair v Bamber Gray Partnership (p 207), a motion for summary decree is not intended to replace a hearing on the procedure roll which is designed for the disposal of legal questions requiring more detailed and extensive legal debate. A motion for summary decree will be appropriate where the pursuer anticipates being able to satisfy the court, without the need for any prolonged legal debate, that there is no defence to the whole or part of the action because the defender's averments are irrelevant.
...
[19] In our view, therefore, a judge who is considering a motion for summary decree is entitled to proceed not merely on what is said in the defences, but on the basis of any facts which can be clarified, from documents, articles and affidavits, without trespassing on the role of the proof judge in resolving factual disputes after hearing the evidence. The judge can grant summary decree if he is satisfied, first, that there is no issue raised by the defender which can be properly resolved only at proof and, secondly, that, on the facts which have been clarified in this way, the defender has no defence to all, or any part, of the action. In other words, before he grants summary decree, the judge has to be satisfied that, even if the defender succeeds in proving the substance of his defence as it has been clarified, his case must fail. So, if the judge can say no more than that the defender is unlikely to succeed at proof, summary decree will not be appropriate: it is only appropriate where the judge can properly be satisfied on the available material that the defender is bound to fail and so there is nothing of relevance to be decided in a proof."
[6] The relevant test was expressed rather differently in Cowie v Atlantic Drilling Co Ltd 1995 SC 288, in which the Lord President (Hope), delivering the opinion of the court, said that it would be "enough for the pursuer (if) he (would) almost certainly succeed on one of his cases of fault." In my view, the "bound to fail" test and "almost certainly succeed" test should be regarded as two sides of the same coin.
[7] It is accepted by the second defender that the first defender was convicted as averred by the pursuer. In the circumstances, it might have been thought unlikely that the second defender could successfully defend this action on the merits. The motion for summary decree was resisted, however, in reliance on the following averments:
"Explained and averred that the accident occurred in the vicinity of premises known as the Ranza Bar. The licensee of the premises was the first defender's uncle. Shortly prior to the accident a group of individuals had...
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...decree is well established. Reference was made in the argument before me to the case of McLaughlin v Morrison & Esure Services Ltd [2013] CSOH 168 where Lord Jones helpfully reviews the general requirements for an application of this sort including the authoritative decision of Henderson v ......