Martin David Mckie And Others V. Maureen Macrae And Another
| Jurisdiction | Scotland |
| Judge | Lord Glennie |
| Neutral Citation | [2005] CSOH 175 |
| Date | 23 December 2005 |
| Docket Number | A130/96 |
| Court | Court of Session |
| Published date | 20 January 2006 |
| OUTER HOUSE, COURT OF SESSION [2005] CSOH 175 | |
| A130/96 | OPINION OF LORD GLENNIE in the cause MARTIN DAVID McKIE and OTHERS Pursuers; against MAUREEN MacRAE and ANOTHER Defenders: ________________ |
Pursuers: J.R. Campbell, QC; D. Parratt; Bishops
First Defender: A. Smart; Brodies
Second Defender: R. Dunlop; Balfour & Manson
23 December 2005
Introduction
[1] This case came before me on the Procedure Roll in May of this year. The hearing could not be concluded then and had to be adjourned until September. In addition to a number of points on relevancy, the case raises once again the question of whether the court has power to bring an end to proceedings where there has been excessive delay putting at risk the possibility of a fair trial of the issues in dispute between the parties.
[2] The action concerns a road traffic accident which occurred in 1986, nearly 20 years ago. A car driven by Robert MacRae swerved across the road and crashed into a lorry coming the other way. Mr MacRae and all three passengers in the car were killed. One of those passengers was Coral McKie. The pursuers are her children. They sue in respect of the alleged negligence of Mr MacRae. Since Mr MacRae died intestate with no assets in respect of which confirmation could be obtained, the first defender, his widow, is sued as his heir for decree cognitionis causa tantum. The car was owned by the second defender, and had been hired out to one of the other passengers in it at the time of the accident. The second defender is sued for negligence in respect of the condition of the car and its tyres.
[3] Both defenders have tabled a plea to the relevancy of the pursuers' averments. They also have two pleas-in-law raising the issue of the pursuer's delay in prosecuting this action. Those pleas, as formulated by the different defenders, differ in their precise wording, but are to the following effect: (a) that the pursuers having delayed unwarrantably in prosecuting the action, as a result of which there is a substantial risk that a fair trial will not be possible et separatim the defenders have been prejudiced in their ability to defend the same, the action should be dismissed in the exercise of the inherent jurisdiction of the court; and (b) that the continuation of the action being incompatible with the rights of the defenders in terms of Article 6(1) of the European Convention on Human Rights and Fundamental Freedom ("the Convention"), the defenders should be assoilzied, failing which the action should be dismissed.
[4] As counsel for the first defender remarked at the outset, it is unusual in 2005 to be dealing with a road traffic accident which occurred in 1986. A broad outline of what has happened between then and now is as follows. This is taken from a procedural chronology put before me during the hearing, which I understood not to be contentious.
[5] In January and February 1987, following the accident, a Fatal Accident Inquiry ("FAI"), at which the first defender was represented, was held before the Sheriff Principal at Stranraer. On 17 July 1989, the day before the expiry of the triennium, an action was raised at the instance of Alister McKie and Mary McNairn, respectively the husband and mother of Coral McKie, directed against the present defenders and also against Mrs Paul, the wife and executrix of David Paul, who had hired the vehicle from the present second defender and who was initially believed to have been driving. In that action, Alister McKie sued both as an individual and also as tutor and administrator in law of his children, the pursuers in the present action. It is not clear exactly what happened to that action. Defences were lodged for Mrs MacRae (the first defender in the present action). The action was sisted, apparently due to a dispute between the agents for the pursuers in that action, on the one hand, and the Dominion Insurance Company ("the insurers") and/or the Motor Insurers Bureau ("MIB") on the other, about whether the claim had been properly and timeously intimated. I am told that that action probably remains sisted but the court file cannot be found. I do not know why a new action was raised, rather than the sist being recalled but I was told that it might be to do with notification of proceedings to the insurers. Whatever the reason, it comes as no surprise that both defenders in the present action advance a plea of lis pendens albeit that, in view of the uncertainties to which I have referred, it was agreed that these pleas should at present be left over.
[6] The summons in the present action was signetted on 8 July 1996 and served some time thereafter. Until the instance was recently amended, the pursuers were Alister McKie, suing as guardian of Coral McKie's two youngest children and Karen McKie, her oldest child. Now the three children are all named as pursuers. It is not disputed that this action was raised timeously because of the nonage of the pursuers, the pursuers having been born in 1978, 1980 and 1983: see section 18(3) of the Prescription and Limitation (Scotland) Act 1973. However, on 6 August 1997 the action was sisted, on the application of the first defender, pending determination of her application for legal aid. That application was granted in about May 1998. Notwithstanding that, the action remained sisted for a further 5 years or so. During that period it appears that the then agents for the pursuers were again in discussions, or possibly in dispute, with the insurers and the MIB. The sist was only recalled on 7 August 2003, shortly after a change of solicitors for the pursuers. They too had to consider the question of the involvement of the insurers or of MIB. As I understand the position, a claim for professional negligence, in respect of the failure properly to intimate the summons to the insurers or to MIB, has been raised by the pursuers against her former solicitors, but this claim has been sisted pending the outcome of the present action. On the information given to me it appears that no criticism can attach to the pursuers' present solicitors in respect of the delay in this action.
[7] On 23 July 2003 the pursuer's present solicitors intimated their intention to seek recall of the sist. The second defender lodged defences the next day. The sist was recalled on 7 August and on that day the first defender lodged defences. The defences both contained the complaints about delay which are the subject of the present Procedure Roll hearing. The Closed Record was lodged on 16 July 2004 and the cause appointed to the Procedure Roll on the first and second defenders' preliminary pleas. I first heard argument on 26 and 27 May 2005. It became apparent that two days were insufficient to complete the hearing. I heard a further two days argument on 29 and 30 September 2005.
[8] Just before the matter came before me on the Procedure Roll, the pursuers amended the Record to include new averments of fault against Mr MacRae and against the second defender. As against Mr MacRae, there were new averments introducing issues concerning Mr MacRae's speed before the accident, the amount of alcohol that he and others had been drinking, and whether or not he ought to have been aware of the car being difficult to control on account of the state of its rear tyres. As against the second defender, there were introduced further averments focusing the case that the accident was caused by poor road-holding as a result of the rear tyres being defective or, at least, unevenly inflated. I shall return to consider these amendments later in this Opinion.
First defender's submissions
Inherent power[9] For the first defender, Miss Smart submitted that the court has power to put a stop to proceedings in circumstances where excessive delay on the part of the pursuer puts at risk the possibility of a fair trial of the issues or otherwise causes serious prejudice to the defender. She accepted that no such power is set out in the Rules of Court, but they were not a codification of the powers of the court. There were many examples of practices and procedures having developed without reference to the Rules of Court. An example close to the instant case was the procedure by which the Motor Insurers Bureau can enter the process as party minuters, and the case then proceeds against them on that basis. She referred me to the case of Newman Shopfitters Ltd v M.J. Gleeson Group plc 2003 SLT (Sh.Ct.) 83 in which Sheriff Principal Macphail (as he then was) was in no doubt about the existence and nature of such an inherent jurisdiction, derived not from any statute or Rule of Court but from the very nature of the court itself. Newman was followed in Wilson t/a T W Contractors v Drake & Skull Scotland Ltd. 2005 SLT (Sh. Ct.) 35. Support for the existence of such a power was to be derived from Erskine I ii 8. The inherent jurisdiction had been described in Hall v Associated Newspapers Ltd 1979 J.C. 1 as "the indispensable power which is inherent in every court to do whatever is necessary to discharge the whole of its responsibilities". Miss Smart relied upon the remarks of Sir Jack Jacob in his article on practice and procedure in Halsbury's Laws of England Vol. 37 (4th ed.) at paragraph 14:
"... the inherent jurisdiction of the court is a virile and viable doctrine, and has been defined as being the reserve or fund of powers, a residual source of powers, which the court may draw upon as necessary whenever it is just or equitable to do so, in particular to ensure the observance of the due process of law, to prevent vexation or oppression, to do justice between the parties and to secure a fair trial between them."
This passage was cited with approval in Newman, and by the Court of Appeal of Manitoba in Montreal Trust Co v Churchill Forrest Industries (Manitoba) Ltd (1971) 21 D.L.R. (3d) 75 at 81. Newman had been referred to by Lord Hope with apparent approval, or at least without disapproval, on this point in ...
To continue reading
Request your trial
-
Barrie Tonner And Another V. Reiach And Hall
...AC 486; [1994] 2 WLR 39; [1994] 1 All ER 20; [1994] 1 Ll LR 251 Mackenzie v Catton's TrsSC (1877) 5 R 313; 15 SLR 223 McKie v MacRaeUNK [2005] CSOH 175; 2006 SLT 43; 2006 SCLR 550 Montreal Trust Co v Churchill Forest Industries (Manitoba) Ltd (1971) 21 DLR (3rd) 75 Newman Shopfitters Ltd v ......
-
Ferran (Patrick) v Chief Constable of the Police Service of Northern Ireland
...Humphreys described as akin to a public law remedy). [41] As support for his position Mr Humphreys offered the decision in McKie v McRae (2005) CSOH 175 where Lord Glennie stated : 11 “The right to a hearing within a reasonable time is a stand-alone right. A victim of a breach of that right......