Barrie Tonner And Another V. Reiach And Hall

JudgeLord Philip,Sir David Edward,Lord Abernethy
Judgment Date12 June 2007
Neutral Citation[2007] CSIH 48
Published date12 June 2007
Docket NumberA/3369
CourtCourt of Session
Date12 June 2007


Lord Abernethy Lord Philip Sir David Edward [2007] CSIH 48



delivered by LORD ABERNETHY



in the cause


Pursuers and Respondents;



Defenders and Reclaimers:


Act: Drummond, Solicitor Advocate; Shepherd & Wedderburn (Pursuers and Respondents)

Alt: Howie, Q.C., Thomson; DLA Piper Rudnick Gray Cary Scotland (Defenders and Reclaimers)

12 June 2007

Introduction and background

[1] In 1982 the pursuers and respondents ("the pursuers") in this reclaiming motion contracted with the defenders and reclaimers ("the defenders"), a firm of architects, to design, administer, supervise and advise on the building of a dwellinghouse in Livingston. Construction began in 1982. The house was designed and built and on 17 November 1983 the defenders issued a certificate of completion.

[2] Thereafter disputes arose in relation to the building of the house. A dispute between the pursuers and the building contractors over payments which were claimed for extensions of time led to an arbitration in about 1986.

[3] On 15 November 1988 the summons in this action was served on the defenders, alleging negligence and breach of contract on their part. It was averred that problems and defects in the house were caused by the defenders' negligence in design and supervision.

[4] Defences were not lodged and on 21 December 1988, on the pursuers' intimated but unopposed motion, the cause was sisted. The interlocutor of that date recorded that the sist was "pending negotiations between the parties with a view to settlement". The action has remained sisted since then.

[5] Following the sist there was a desultory correspondence between the parties' solicitors which was broken off at various stages and led to no conclusion. In April 1997 the defenders made an offer in settlement of £20,000. The offer was refused and a number of attempts were made to arrange meetings, three of which were cancelled by the pursuers' solicitors. A meeting between solicitors did take place on 25 June 1997, but nothing came of it.

[6] A year later, in June 1998, an internal memo of the defenders' solicitors' records that the pursuers' solicitors sought to arrange a meeting with a partner in the defenders' solicitors' firm who knew nothing about the case. The partner who knew about the case sent a letter dated 12 June 1998 to the pursuers' solicitors explaining that, before a meeting could be arranged, he would have to obtain the authority of the defenders' London solicitors, requesting clarification of the purpose of the meeting and the proposed agenda, and asking for clarification of certain matters that had been discussed at the meeting a year earlier.

[7] The pursuer's solicitors did not reply to the letter of 12 June 1998, and no further communication between the parties or their solicitors occurred until early 2005.

[8] On 6 April 2005 the pursuers enrolled a motion to recall the sist. Warning of their intention to do so had been given in correspondence by their solicitors on 16 March 2005. The motion was opposed and the defenders enrolled their own motion for decree of absolvitor. The motions could not be heard before the Vacation Court due to pressure of business and they eventually came before the Lord Ordinary at a hearing that took place on 26 and 27 May and 5 and 6 July 2005. The full terms of the defenders' opposition to the pursuers' motion were as follows:

"(i) the Court, in exercise of its inherent jurisdiction ought to grant Decree

of Absolvitor, having regard to

(a) the inordinate, unexplained and inexcusable delay on the part of

the Pursuers in progressing this action subsequent to the sist pronounced on 21 December 1988,

(b) the serious prejudice to the Defenders which such delay has

caused, and

(c) in any event, the substantial risk to a fair consideration of the

issues of fact in the case which such delay has caused;

or alternatively

(ii) the Court being prohibited, in terms of Section 6 of the Human Rights

Act 1998 (the 'Act') from acting in a way which would be incompatible with the Defenders' Convention Rights (as defined in the Act), the allowance of further procedure in this case would be a breach of the Defenders' Article 6(1) right to have their civil rights and obligations determined at a fair and public hearing within a reasonable time by an independent and impartial tribunal.

Accordingly, RCS 20.1 properly interpreted in the circumstances of this case requires that Decree of Absolvitor be granted ... ".

[9] The Lord Ordinary held that the defenders' motion for absolvitor was not competent. She therefore refused it. Her interlocutor of 5 August 2005 gave effect to that decision. It is against that interlocutor that the defenders enrolled the present reclaiming motion. If the reclaiming motion is successful the subsequent interlocutor of the Lord Ordinary, dated 9 August 2005, which dealt with the expenses of the motion before her, would fall.

The Lord Ordinary's Opinion

[10] The principal contention on behalf of the defenders was that in appropriate, although exceptional, cases the Court had power to bring an action to an end by granting decree of absolvitor. No such power was provided by the Rules of Court but the power existed by reason of the inherent jurisdiction vested in the Court. In view of the inordinate and inexcusable delay that had taken place since the interlocutor of 21 December 1988 and the difficulties that the defenders would face if the case went ahead due to the passage of time and loss of evidence the Court should exercise the power in this case.

[11] The defenders also contended that to allow the case to proceed now would be a breach of the defenders' right in terms of Article 6(1) of the European Convention on Human Rights ("the Convention") to have their civil rights and obligations determined at a fair and public hearing within a reasonable time by an independent and impartial tribunal. The Court, as a public authority, was prohibited in terms of section 6 of the Human Rights Act 1998 ("the Human Rights Act") from acting incompatibly with the Convention. Its own procedures required to comply with the Convention and once the breach was identified in this case, the only course was for the Court to stop the proceedings.

[12] In the result the Lord Ordinary, accepting the pursuers' counter arguments, held that the defenders' motion was incompetent. She did so essentially on the basis that in terms of section 5 of the Court of Session Act 1988 the Court was given power to regulate its procedure by way of Act of Sederunt. By Act of Sederunt the Court had made Rules of Court to govern procedure. The silence in the Rules on this matter was in the circumstances indicative of an intention by the Court not to confer the power for which the defenders contended. The Lord Ordinary went on to hold that, even if the defenders' motion was competent, it would not have been appropriate in the circumstances to exercise her discretion to grant the motion. She held on the information before her that the delay, while inordinate, was not wholly inexcusable. She was not persuaded that in all the circumstances a fair trial was not still possible or that the defenders would be unduly prejudiced. In any event, the remedy favoured by the Lord Ordinary, if she had reached that stage, would have been dismissal of the action rather than decree of absolvitor.

[13] The Lord Ordinary also rejected the defenders' submissions based on Article 6(1) of the Convention. The Court had not been in any way responsible for the delay which had occurred. Nor would it be acting in breach of Article 6(1) by recalling the sist. In any event, termination of the proceedings was not the only, or even the usual, remedy available to deal with such a situation. The usual remedy, in terms of section 8(1) of the Human Rights Act, and the one the Lord Ordinary would have favoured if she had reached that stage, would be to take steps to accelerate determination of the case.

Submissions of counsel

[14] Mr. Thomson, junior counsel for the defenders, submitted that the nature of the Court's inherent jurisdiction was such that the Court had power to bring to an end litigation where there had been such delay on the part of a pursuer in prosecuting his claim as to put at risk the possibility of a fair trial of the issues between the parties or otherwise to prejudice the defenders so as to amount to an abuse of process on the part of the pursuer, unless such power was excluded or fettered by the Rules of Court.

[15] In advancing that proposition Mr. Thomson examined first the nature of the inherent jurisdiction of the Court. The Scottish authorities were scarce but he referred first to Hall v Associated Newspapers Ltd. 1979 JC 1. That case was concerned with contempt of Court. Giving the Opinion of a Court of five judges Lord Justice General Emslie stated (at page 9) that the power which the Court had to punish summarily conduct which impedes the Court in the exercise of its functions was part of "the indispensable power which is inherent in every Court to do whatever is necessary to discharge the whole of its responsibilities". Support for that opinion was derived from Erskine's Institute 1.2.8 and Hume on Crimes, 3rd edition, chapter VI page 139. This was consistent with what is stated in Halsbury's Laws of England, 4th edition vol. 37, para. 12 under reference, inter alia, to Jacob's article The Inherent Jurisdiction of the Court (1970) 23 Current Legal Problems 23. Its inherent jurisdiction is a residual power of the Court to which it can resort in an appropriate case. In Shetland Sea Farms Ltd. v Assuranceforeningen Skuld 2004 SLT 30 Lord Gill under reference to the same article said that the Court of Session had an inherent power to dismiss a claim where the party pursuing it has been guilty of...

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1 firm's commentaries
  • Delay At Your Peril
    • United Kingdom
    • Mondaq United Kingdom
    • 17 November 2008
    ...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 court having power to dismiss a claim due to delay, the new rules make this crys......

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