FIRST DIVISION, INNER HOUSE, COURT OF SESSION
Lord President Lord Reed Lord Carloway	[2010] CSIH 71 A502/98 OPINION OF THE LORD PRESIDENT in causa MICHELLE HEPBURN, A.P. Pursuer and Reclaimer; against (FIRST) ROYAL ALEXANDRA HOSPITAL NHS TRUST and (SECOND) GLASGOW ROYAL INFIRMARY Defenders and Respondents: _______

Act: Hajducki, Q.C., Devlin, MacGregor; Allan McDougall

Alt: Dunlop; R F Macdonald

27 July 2010

Introduction

[1] The reclaimer seeks damages from the first and second respondents on the ground that she has suffered loss, injury and damage as result of medical care which they provided. Due to a rare congenital condition the reclaimer has no vaginal orifice. In October 1993 she was referred to Dr David Gilmore, a Consultant Gynaecologist employed by the first respondents. In November 1994, he performed a total abdominal hysterectomy and a bilateral oophorectomy. In February 1995 she was referred to Mr Webster, a Consultant Plastic Surgeon employed by the second respondents, who performed a split skin graft reconstruction of the vagina and supplementary corrective procedures. From August 1995 until October 1997 further corrective procedures were carried out by other surgeons employed by both respondents. This action was raised in April 1998. On 13 December 2007, the respondents' lodged a minute craving its dismissal on the ground of prejudice caused by inordinate and inexcusable delay in its progression. This reclaiming motion is brought against the Lord Ordinary's decision of 30 May 2008 to dismiss the action.

Procedural History

[2] When the action was first raised, the case against Dr Gilmore averred that he had removed the reclaimer's ovaries unnecessarily, that he had a duty to retain them and that he had a duty to advise her that their removal was not necessary, allowing her to reach her own decision about whether that should be done. The case against Mr Webster averred negligence in his performance of the surgical procedures and in the post-operative care which he provided. According to the court's interlocutor, on 28 May 1998, on the motion of the second respondents, the action was sisted for further investigation. Thereafter, the reclaimer's then solicitors made no significant progress in the action for some six years, despite repeated letters from the respondents' representatives making enquiries in that regard: no application for legal aid was made, no hospital records were recovered and no expert report was instructed. In March 2002 Dr Gilmore died. On 21 September 2004, the reclaimer's solicitors wrote to the respondents' representatives formally to intimate their withdrawal from acting, indicating that they had been unable to contact the reclaimer and were without instructions. On 11 November 2004, on the respondents' motion, the sist was recalled and the reclaimer was ordained to intimate to the Deputy Principal Clerk within 14 days whether she intended to proceed with the action (cf Rule 30.2).

[3] The reclaimer instructed her current solicitors on 23 November 2004, after which the claim proceeded. On 23 December on the unopposed motion of the first respondents, the sist was recalled, defences were received late, on cause shown, and the action was again sisted for further investigation. A similar motion made on behalf of the second respondents was granted on 19 January 2005. Thereafter, the reclaimer's solicitors undertook work in order to progress the action, obtaining medical records, expert reports and sanction from the Legal Aid Board. Following a number of requests to the respondents' representatives, they also, in the presence of the respondents' legal advisers, precognosced Mr Webster in January 2007. On 21 November 2007, on the reclaimer's motion, the sist was recalled and she was ordained to lodge an Open Record within 14 days. In the same month, the reclaimer's agents intimated 10 pages of typed adjustments to the respondents. In addition to the averments regarding the lack of need for the oophorectomy and the lack of informed consent, the proposed case against Dr Gilmore now avers that he ought to have offered her medical therapy in the first instance with retention of her ovaries, that he instigated reconstructive surgery without counselling her on the risks and benefits involved, and without arranging a joint consultation with a specialist plastic surgeon, and that he failed in his duty to warn of the risk of rectal damage. The case against Mr Webster based on operative negligence has been replaced with a case based on a failure to discuss the risks and benefits of the surgical procedure he performed and thus to obtain informed consent. These changes prompted the respondents to lodge the minute seeking dismissal of the action.

The decision of the Lord Ordinary

[4] The Lord Ordinary considered that the responsibility for the delay in progressing the action lay with the reclaimer's former solicitors and that, given that initial delay and the complexity of the case, her current solicitors acted with reasonable dispatch and could not be criticised. Nevertheless, she considered that "..., notwithstanding the best efforts of the present agents, the original lengthy period of inactivity has resulted in a situation where there has overall been an inordinate and inexcusable delay resulting in unfairness to the defenders" (at para [24] - [25]). A material consideration in her decision was the fact that the adjustments resulted in cases which were, in material respects, different from those which the respondents would initially have investigated. The main reasons for her decision are set out in the following passage (at para [25]):

"The case against Dr Webster is now wholly different and is made only 12 years after his last involvement in the case. It is entirely unrealistic and unfair to expect him to address and indeed to remember, all that might have taken place so long ago on the issue of informed consent now being raised for the first time. The situation is even worse regarding the new case made against Dr Gilmore since no investigation regarding that can be done beyond what is revealed in the papers. I recognise that such a situation might have arisen anyway, given Dr Gilmore's untimely demise. However, I am of the view that had the original agents proceeded to investigate and prepare the case with requisite dispatch, it is highly likely that the cases pled would have been identified at a time when Dr Gilmore could have been asked about them. It took the new agents less than three years to reach the stage of revising the pleadings, and that was in a situation where they must have been to some extent hampered by the original delay of six years. The original case against Dr Gilmore has not been entirely altered but I do not think it would be fair in all the circumstances even to let that case go further."

In dismissing the action, the Lord Ordinary upheld the first plea in law for the first respondents and the second plea in law for the second respondents, which pleas in law were to the effect that the reclaimer's averments were irrelevant et separatim lacking in specification.

Submissions on behalf of the reclaimer

[5] Mr Hajducki submitted that the Lord Ordinary did not have an inherent power to dismiss the action, notwithstanding the decision in Tonner v Reiach and Hall 2008 SC 1, which might need to be reconsidered by a larger bench. The "inherent jurisdiction" was primarily a nineteenth century creation of the English common law (Cocker v Tempest (1841) 7 M. & W. 502, per Alderson B at pages 503-504), which conceived the "court" as an emanation of the King's Court at Westminster. In contrast, the Court of Session had been created by statute. Its jurisdiction derived from an Act of Parliament of 1532, which reserved the power to fix the practice and procedures of the Court to the King (Act 1532, C36; APS ii, 335, C2). That power was passed to the Court by an Act of 1540, which prescribed that it was to be exercised by the president, vice-president and senators (Act 1540, C93; APS ii, 371, C10). That statutory power (to regulate procedure etc by act of sederunt) was now reflected in section 5 of the Court of Session Act 1988. It ensured adequate notice was given of procedural changes and maintained a consistency of approach by Lords Ordinary. The Court's only residual power to regulate its own procedure was that required to explicate its jurisdiction (Erskine, Institute I, ii, 8). It arose out of necessity and was not comparable to a power to provide "a just and equitable solution" (DJL v The Central Authority (2000) 201 CLR 226, at para 25; Mayo Associates SA v Cantrade Private Bank Switzerland (CI) Ltd [1998] JLR 173, per Smith, JA at pages 188-9).

[6] The circumstances both in Tonner and in the present action were not novel and did not necessitate an exercise of any residual power. In England, the power to dismiss an action for want of prosecution had been recognised for some time (Allen v Sir Alfred McAlpine & Sons Ltd [1968] 2 QB 229). Similar issues had already arisen in Scotland (Esso Petroleum Company Ltd v Hall, Russell & Company Ltd (No.2) 1995 SLT 127; cf Newman Shopfitters Ltd v MJ Gleeson Group plc 2003 SLT (Sh.Ct.) 83 and McKie v MacRae 2006 SLT 43). Neither were considerations of a fair trial under Article 6 of the European Convention on Human Rights novel in 2007 (cf Tonner, at para [102]). The draconian remedy of dismissal marked a significant departure from the Court's previous procedure, and ought to have been effected by an act of sederunt. The authorities cited in Tonner did not support the existence of an inherent jurisdiction to dismiss an action. They concerned not the regulation of procedure, but contempt of court (Hall v Associated Newspapers Ltd 1979 JC 1) or abuse of process (Levison v The Jewish Chronicle Ltd 1924 SLT 755, per Lord Ashmore at page 759 - 760; Shetland Sea Farms Ltd v Assuranceforeningen Skuld 2004 SLT 30, per Lord Gill at paras [144] to [146]; Clarke v Fennoscandia Ltd (No.3) 2005 SLT 511, per Lord Justice Clerk Gill at paras [16] to [18] and Lord Clarke at para [40]). The scope of the principle of "abuse of process" was limited (Wright v Paton Farrell 2006 SC 404, per Lord President Hamilton at para [20] and Lord Osborne at para [164]). Indeed, the court in Tonner stated that want of prosecution was not a sub-category of it (at para [88]). That left a gap in its reasoning. The Preface to the Codifying Act of Sederunt 1913 (per Lord President Dunedin, at page xvi) and to the Act of Sederunt 1934 (per Lord President Clyde at page 7) merely referred, on a sound understanding, to the inherent power conferred by Parliament. Reference was also made to Lord President Campbell's Preface to the Acts of Sederunt (1811) at pages v-vi and to Alexander's Abridgement of the Acts of Sederunt (1838) at pages vii-ix. The court in Tonner had effectively been legislating, which could only be done by act of sederunt.

[7] If the reclaimer was correct as regards the inherent jurisdiction, the respondents could not then rely on Rule of Court 21A to have the action dismissed. To the extent that it operated retrospectively, it was ultra vires of the court's power under section 5 of the 1988 Act. The presumption was that Parliament did not intend legislation to have such an effect (Maxwell on Interpretation of Statutes, 12^th ed., at page 215). The exception as regards procedural provisions did not apply: the dismissal of the action would affect the reclaimer's substantive right to damages (L'Office Cherifien des Phosphates and Another v Yamashita-Shinnihon Steamship Company Ltd [1994] 1 AC 486, per Sir Thomas Bingham MR at pages 497-498 and Kennedy LJ at pages 501-2). There had been no interregnum for the rule and parties could not have foreseen that delay might have resulted in dismissal. The result was so unfair that Parliament could not have envisaged the rule being applied in that way (L'Office Cherifien des Phosphates, per Lord Mustill at pages 524-529; Wilson v The First County Trust Ltd (No.2) [2004] 1 AC 816, per Lord Rodger of Earlsferry at para 201). If the rule was intra vires, it should be construed as not having retrospective effect.

[8] As to the merits, the Lord Ordinary had not applied the correct test. The question was whether, in the circumstances, a fair trial was not possible (cf Tonner, at para [136]). The case against Dr Gilmore largely depended on expert evidence regarding the need for informed consent specific to the oophorectomy. The consent form and medical records had been recovered and could be consulted. The untimely death of Dr Gilmore was always likely to have been a feature of a proof, but could be taken into account in any decision. At precognition Mr Webster could clearly remember the reclaimer's case. The Lord Ordinary had failed properly to weigh in the balance other relevant factors: much of the delay resulted from sists put in place on the motion of the respondents; in lodging defences, they had induced the reclaimer to incur further costs in the reasonable belief that the matters were to progress; it was necessary to consider whether the delay in question had rendered a fair trial impossible (see Trill v Sacher [1993] 1 WLR 1379, per Neill LJ at page 1398-1399). There had been no abuse of process. Parties had followed the rules of court then applicable. The reclaiming motion should be allowed.

Submissions on behalf of the respondents

[9] Mr Dunlop submitted that Tonner had been correctly decided and should be followed. It had been approved by a bench of five judges (Moore v Scottish Daily Record and Sunday Mail Limited 2009 SC 178, per Lord Justice Clerk Gill at paras [13]-[14]). The Court of Session was not a "statutory" court. The Lords of Council and Session pre-dated the 1532 Act (Stair Memorial Encyclopaedia vol 6, paras 902-904). The Court had evolved to become the Supreme Court in Scotland, adopting the powers of the King's Council and exercising an inherent supervisory role not prescribed by statute (Stair Memorial Encyclopaedia, vol 6, para 910; West v Secretary of State for Scotland 1992 SC 385, per Lord President Hope at pages 393 and 396-397). That was seen in the exercise of the nobile officium (Royal Bank of Scotland plc v Gillies 1987 SLT 54, per Lord Justice Clerk Ross at page 55). As the Supreme Court it could be distinguished from a statutory court (Grassby v The Queen (1989) 168 CLR 1, per Dawson J at pages 15-16; cf DJL v The Central Authority). It had an inherent and necessary jurisdiction to preserve the due and impartial administration of justice and to exercise its functions (Cordiner, Petitioner 1973 JC 16, per Lord Justice General Emslie at page 18; Hall v Associated Newspapers Ltd, per Lord Justice General Emslie at page 9; Bremer Vulkan Schiffbau und Maschinenfabrik v South India Shipping Corporation Ltd [1981] AC 909, per Lord Diplock at page 977; I H Jacob, The Inherent Jurisdiction of the Court (1970) CLP 23, at page 51, approved in Grobbelaar v News Group Newspapers Ltd [2002] 1 WLR 3024, per Lord Bingham of Cornhill at para 25 and Lord Steyn at para 37). That was in accordance with the decision in Tonner (at paras [46] and [61]). The power to dismiss an action would only be exercised where delay had resulted in unfairness, an approach recently approved by the Privy Council (Icebird Ltd v Winegardner (The Bahamas) [2009] UKPC 24).

[10] There were numerous examples of the court exercising its inherent jurisdiction, absent relevant rules of court (Global Santa Fe Drilling (North Sea) Ltd v Lord Advocate 2009 SC 575; Clarke v Fennoscandia (No.3); Mearns v Smedvig 1999 SLT 585; Iomega Corporation v Myrica (UK) Ltd 1998 SC 636; Balfour Beatty Ltd v Brinmoor Ltd 1997 SLT 888; Salaried Staff London Loan Company Ltd v Swears & Wells 1985 SC 189; McKie v MacRae). The cases on abuse of process, if not directly analogous, were relevant to the circumstances of the present case (Levison v The Jewish Chronicle Ltd; Shetland Sea Farms Ltd v Assuranceforeningen Skuld). The inherent jurisdiction was also recognised, albeit in a different context, in Rule of Court 55.1. If the court was statutory in nature and lacked the requisite inherent jurisdiction, it had an implied jurisdiction encompassing exactly the same power (Jackson v Sterling Industries Ltd (1987) 162 CLR 612, per Wilson and Dawson JJ at pages 618 - 619; Grassby v The Queen, per Dawson J at page 16; Jago v The District Court of New South Wales and Others (1989) 168 CLR 23, per Gaudron J at pages 73-74).

[11] In any event, the action could be dismissed under Rule of Court 21A, which was not ultra vires of the court's powers. Changes in procedural matters were presumed to have retrospective effect (Wright v Hale (1860) 6 H & N 227, 158 Eng Rep 94, per Wilde B at page 232, 96; Gardner v Lucas (1878) 3 App Cas 582, per Lord Blackburn at page 603). As to the intended retrospective effect of Rule of Court 21A, the wording was similar to that in the Act of Parliament construed by the House of Lords in L'Office Cherifien des Phosphates. Moreover, even if not authorised by section 5 of the 1988 Act, the Court had an inherent power to make regulations as to its procedure (Preface to the Codifying Act of Sederunt 1913, per Lord President Dunedin at page xvi). The words employed in the Rule of Court suggested that it should be construed as having a retrospective effect, particularly as it was passed in light of the decision in Tonner.

[12] The Lord Ordinary's decision could not be criticised as being plainly wrong or as failing to attribute appropriate weight to a relevant matter (see Birkett v James [1978] AC 297, per Lord Diplock at page 317 and Lord Salmon at pages 325 - 326). It was accepted that that test in Tonner should be read as involving whether a fair determination was impossible (Moore v Scottish Daily Record and Sunday Mail, per Lord Justice Clerk Gill at paras [13]-[14]; L'Office Cherifien des Phosphates, per Lord Templeton at page 517). That test was met in the present case, which the respondents could not properly defend. The action had been raised late in the triennium and further delay was likely to have arisen before the proof (cf Tonner, at para [133]). The adjustments materially altered the cases against the respondents. Mr Webster's precognition had taken place before those changes and Dr Gilmore, who would also have been an important witness for Mr Webster, could not be consulted on them. Medical records were no substitute for his evidence (McConnell v Ayrshire & Arran Health Board 2001 Rep LR 85, per Lord Reed at paras [26]-[28]).

[13] The sists requested by the respondents did not absolve the reclaimer of her responsibility to pursue her action (L'Office Cherifien des Phosphates, per Lord Mustill at page 519 - 520; Tonner, at paras [127]-[128]; McKie v MacRae, per Lord Glennie at para [50]). Moreover, during the period of the initial sist the reclaimer had intimated that she was not ready to proceed. In any event, the grounds of appeal did not dispute that there had been inordinate and inexcusable delay in the action. Before the Lord Ordinary no claim had been made that, in lodging defences, the respondents had induced the reclaimer into taking further steps in pursuance of her claim, nor did it form part of the grounds of appeal. The procedure followed by the respondents when the reclaimer's original agents withdrew was mandatory (Rule of Court 30.1). By following that procedure, they could not be deemed to have waived a right to seek dismissal which would not have been in their contemplation at that stage. In any event, the main prejudice arose from the adjustments and the respondents had sought dismissal shortly after they were intimated. The circumstances of the present case were self-evidently unfair to the respondents. The decision of the Lord Ordinary should be upheld and the reclaiming motion refused.

Discussion - the inherent jurisdiction
[14] The College of Justice emerged as a result of public events which included two Acts of the Parliament of Scotland. These came to be styled the College of Justice Act 1532 (APS ii, 335) and the College of Justice Act 1540 (APS ii, 371). There has been debate amongst scholars as to the significance, if any, of these statutes in the development of the Court of Session. Professor R K Hannay in his work entitled "The College of Justice", first published in 1933 and re-printed in 1989 under the auspices of the Stair Society, was at pains to emphasise that these statutes were of minimal significance in the development of the supreme civil court. His conclusions included that the first of them "is commonly quoted as instituting the College of Justice and often, much more unhappily, as initiating the Court of Session" (page 56) and, under reference to rules compiled in 1532, that "even a casual reading of these rules should have been enough to prevent the extraordinary supposition that the inception of the College of Justice was also the beginning of the Court of Session" (page 38). What had occurred in 1532 (and in 1540) was, in essence, he concluded, a continuity of the existing court known as the Session. Professor Hannay's views have been examined recently by Doctor A M Godfrey in "Civil Justice in Renaissance Scotland" (2009). Of Professor Hannay's view he says: "It can be accepted that the foundation of the College of Justice was essentially a reconstitution of the Session, at the same time as arguing that it embodied particular institutional changes." (page 144). He concludes (page 160): "A separate institutional structure was created and it inherited a full civil jurisdiction from the King's Council."

[15] For the purposes of this litigation it is unnecessary to opine on the subtleties of these scholarly works. It is necessary, however, to say something about certain of the terms of the 1532 and 1540 statutes. The earlier narrated the King's intention (translating from the old Scots) "to institute a college of cunning and wise men ... which persons shall be authorised in this present parliament to sit and decide upon all civil actions ... with such other rules and statutes as shall please the king's grace to make and give to them for ordering the same". It continues:

"The three estates of this present parliament think this article well conceived and, therefore, the king's grace, with the advice and consent of the said three estates, ordains the same to have effect in all points and now ratifies and confirms the same and has chosen these persons underwritten to the effect foresaid, whose processes, sentences and decreets shall have the strength, force and effect as the decreets of the lords of session had in all times bygone ...".

The later statute (again translating from the old Scots) provided:

"The king's grace, with the advice of his three estates of parliament ... has ratified and approved, and ratifies and approves for himself and his successors, the institution of the said college of justice and the acts made for administration of justice therein; ... and wills and ordains, for the causes foresaid, that the said college and institution thereof remained perpetually for the administration of justice to all the lieges of this realm, and to be honoured as any other college of justice in other realms. And also gives and grants to the president, vice-president and senators power to make such acts, statutes and ordinance as they shall think expedient for ordering of processes and the hasty expedition of justice ...".

[16] It was argued for the reclaimer that these provisions made it plain that the Court of Session was a "statutory" court, were inconsistent with that court having any "inherent" powers and, with reference in particular to the present circumstances, were incompatible with that court being empowered by judicial act to dismiss for want of prosecution an action depending before it. While the court had been empowered by the 1540 Act itself to make "such acts, statutes and ordinance as they shall think expedient for ordering of processes and the hasty expedition of justice", that was authority to act legislatively (by act of sederunt), not judicially. Tonner v Reiach and Hall, in which no such argument had been advanced, was unsound in law. A larger court should be convened to review it.

[17] The concept of an "inherent" power in a court is well-recognised in Scots law. In Hall v Associated Newspapers Ltd the High Court of Justiciary had to consider the source of its power to notice and punish contempt of court. Lord Justice General Emslie, delivering the Opinion of a five-bench court, said at page 9:

"The law of contempt of court covers many diverse forms of conduct one of which is conduct that is liable to prejudice the administration of justice generally, or in relation to the case of a particular individual. Its source is to be found in the indispensable power which is inherent in every Court to do whatever is necessary to discharge the whole of its responsibilities. As Erskine says in the Institutes, 1-2-8, 'every power is understood to be conferred without which the jurisdiction cannot be explicated.'"

[18] As to the inherent jurisdiction of the supreme civil court in Scotland, Lord Justice General Emslie, delivering the judgment of the High Court in Cordiner v HM Advocate, had earlier said (at page 18):

"Both the Court of Session and this Court have an inherent and necessary jurisdiction to take effective action to vindicate their authority and preserve the due and impartial administration of justice."

The Court of Session's jurisdiction to supervise the vires of acts of inferior tribunals is but an illustration of the inherent power of that court. As was observed by James Darling in Practice of the Court of Session (1833) at page 15 (cited with approval by Lord President Hope in West v Secretary of State for Scotland 1992 SC 385 at page 397):

"In cases even where the power of review is plainly excluded, the Session, as the supreme civil court of the kingdom, must necessarily still have jurisdiction to examine whether the inferior tribunals proceed according to the regulations of the statutes conferring on them the jurisdiction, and according to the ordinary principles of the common law."

[19] A distinction has sometimes been drawn between an "inherent" power and an "implied" power. It has been said that certain courts, in particular those with a limited jurisdiction, may have no inherent power, albeit they may have in certain circumstances an implied power. The distinction has been drawn in particular in Australia, notably by Menzies J in Reg. v Forbes; ex parte Bevan (1972) 127 CLR 1 at page 7, a passage cited with approval by Dawson J in Grassby v The Queen (1989) CLR 1 at page 16, where the latter observed:

"... it is undoubtedly the general responsibility of a superior court of unlimited jurisdiction for the administration of justice which gives rise to its inherent power. In the discharge of that responsibility it exercises the full plenitude of judicial power."

A contrast was made with a magistrates court as an inferior court with a limited jurisdiction. While in Australia there has been a reluctance to ascribe to modern courts of statutory constitution inherent powers as distinct from implied powers (Jackson v Stirling Industries Ltd (1987) CLR 612; DJL v The Central Authority (2000) CLR 226, especially per Kirby J at page 268), that approach is scarcely apposite to the position of the Court of Session, the supreme court in civil matters in Scotland which has inherited its judicial powers from the medieval King's Council of this country. A parallel with the common law courts of England and Wales, themselves subsequently reconstituted by statute, is more apt. In relation to the Court of Session I see no difficulty in attributing to it "inherent" powers.

[20] The Act of 1540 conferred on the senators of the College of Justice a power which had previously been reserved to the King - namely a power to make rules, statutes (and ordinance). This was essentially a power to act legislatively within the scope of the power. The mode of legislation was by act of sederunt. That power was in modern times statutorily recognised by section 16 of the Administration of Justice (Scotland) Act 1933 (now repealed and effectively re-enacted as section 5 of the Court of Session Act 1988). But the existence of such a legislative power does not, in my view, detract from or limit the inherent power which the court has otherwise.

[21] Section 18 of the 1933 Act established a Rules Council, whose membership included persons from the legal profession, with power to frame rules and to submit them for consideration and, if appropriate, approval by the Court. Section 8 of the 1988 Act continued the existence of the Rules Council. Thus, an opportunity was created for the involvement of the legal profession in the initiation and formulation of rules of court. That wider consultation process may render some procedural changes more apt for initiation by the legislative power to make acts of sederunt than by the judicial decision of a single judge or a panel of judges.

[22] In Tonner v Reiach and Hall the pursuers had in 1982 contracted with the defenders, a firm of architects, for services including design, administration, supervision and advice with respect to a dwellinghouse. Construction began in 1982. In November of that year a certificate of completion was issued. In 1988, days before the expiry of the quinquennium, an action was raised alleging negligence and breach of contract. Before the lodging of any defences, the action was in December 1988 sisted on the motion of the pursuers. It remained sisted thereafter. When in April 2005, more than sixteen years later, the pursuers enrolled a motion to recall the sist, they were met with a counter-motion seeking absolvitor on certain grounds including "the inordinate, unexplained and inexcusable delay on the part of the pursuers in progressing this action ...". In the event the Extra Division dismissed the action.

[23] Having satisfied itself that the court had an "inherent" power, the Division said (at para [61]):

"Third, we do not think it can be the law that, in the absence of express authority, the court is powerless to bring an action to an end if it is satisfied that a point has been reached at which justice cannot possibly be done. That would, in our opinion, be to deny the very reason for the existence of the 'inherent power'. (It is, of course, an entirely different question what conditions would have to be fulfilled before the court could declare itself satisfied that justice could not be done and, a fortiori, whether such conditions are fulfilled in the present case.)"

The Division then asked itself the question:

"Is it necessary, in order for the power to be exercised, that it first be 'crystallised' in the Rules of Court by Act of Sederunt?"

(The expression "crystallised" appears to have come from a passage in the Opinion of Lord Osborne in Wright v Paton Farrell at para 164).

[24] Having considered certain authorities and the function of the Rules of Court, the Division continued:

"[99] Thus, the rules of the Court of Session are not coextensive with the practice of the court. The fact that a particular power is not mentioned in the Rules does not necessarily mean that the power is not available to be used in appropriate circumstances.

[100] There may be circumstances in which it would be undesirable that a power should be used for the first time without it being foreshadowed or 'crystallised' in the Rules of Court. The pursuers submitted that parties should be aware of the potential consequences of their action or inaction. We cannot accept, however, as a general proposition, that the court cannot take any course for which there is no precedent in the absence of a rule of court expressly empowering it to do so.

[101] First, if we assume for the purposes of argument that the court is faced with a completely unprecedented situation in which the court is satisfied that, because of the conduct of one of the parties, justice cannot be done if the case proceeds, it is surely unconscionable that the court should wring its hands and declare itself unable to do justice on the ground that, in spite of the existence of an inherent power to cope with unprecedented situations, there is no rule of court that 'crystallises' the power.

[102] Such a position is, in our opinion, even less tenable in the light of the overriding obligation imposed on the court by Art 6 of the European Convention on Human Rights. It is incumbent on the court, as an organ of the state, under Art 6 of the Convention to ensure that civil rights and obligations be determined 'within a reasonable time'. The court cannot regard itself as constrained, simply because there is no rule of court, to permit private parties to civil litigation to proceed with it in as leisurely a manner as they think fit."

A number of other reasons are then given for concluding that the prior existence of a rule of court was not a prerequisite to the exercise of the inherent power. The Division concluded (para [123]) that

"the court has the power to bring an action to an end for want of prosecution and that, whatever may have been the position in more leisurely times, it is a power that the court should be prepared in appropriate circumstances to exercise. It should, however, be regarded as the option of last resort."

[25] As regards the criteria for exercise of the power to bring an action to an end, the Division said (para [130]):

"In our view, the most important principle is that the power must be exercised in each case in the light of its own facts and circumstances, and that, since it is a draconian power of last resort, the judge must set out the reasons for deciding to exercise it in sufficient detail to leave no doubt in the minds of the parties affected and, if necessary, to be reviewed by a higher court."

A number of criteria were then suggested. The first of these was that the delay was both "inordinate and inexcusable". Secondly, there "... must, in addition to delay, be 'an added element of unfairness ... specific to the particular factual context'" (para [136]). The latter criterion was adopted from Reid and Blackie - Personal Bar at para 3.07. I shall return to that criterion. The Division then addressed certain procedural aspects before dealing with the disposal of the reclaiming motion.

[26] In Moore v Scottish Daily Record a bench of five judges had to address the issue of the inherent power of the court. At para [13] the Lord Justice Clerk said:

"The court has an undoubted inherent jurisdiction to take action where there has been a contempt of court or an abuse of process; or where for some other reason a fair trial of a case has become impossible."

At para [14] he added:

"It is well established in Scots law that the court can exercise its inherent jurisdiction in the case of an abuse of process by way of a procedural sanction such as dismissal (Tonner v Reiach and Hall)."

- though it should be noted that the Extra Division in Tonner did not regard striking out (or dismissal) for want of prosecution as a sub-category of the power to deal with "abuse of process" (see para [88]). The other judges agreed with the Lord Justice Clerk.

[27] In my opinion the Extra Division was correct in its conclusion that there was an inherent power in the Court of Session and that, in appropriate circumstances, that power could be used, notwithstanding the absence of a relative rule of court, to dismiss an action for want of prosecution. Its reasoning in that regard is compelling.

[28] The particular circumstances of Tonner were exceptional: the interval between the last communication between parties and the motion to recall the sist was almost seven years; the interval between the motion to sist and the motion to recall the sist was more than sixteen years; the interval between when the defenders issued their certificate of completion and the motion to recall the sist was more than twenty one years (para [152], as read with paras [4] and [8]). It was a case which cried out for a remedy - see para [101] - notwithstanding that the rules did not themselves address the situation. While there will be some circumstances in which changes in practice ought to await the consultative exercise incidental to the formulation of rules of court, there will be others in which judicial decision may take the lead.

[29] In that connection it is relevant to note that in England and Wales striking out for want of prosecution came to be recognised as essentially founded on the exercise by the court of an inherent jurisdiction, that is, it was judge-made law (Allen v Sir Alfred McAlpine & Sons Ltd; Birkett v James; Bremer Vulkan Schiffbau und Maschinenfabrik v South India Shipping Corporation Ltd). Lest it should be thought to have been overlooked, it should be noted that there was an existing rule of court. Order 25 of the Rules of the (then) Supreme Court provided:

"(1) With a view to providing, in every action to which this rule applies, an occasion for the consideration by the Court of the preparations for the trial of an action ... the plaintiff must, within one month after the pleadings in the action are deemed to be closed, take out a summons (in these rules referred to as a summons for directions) returnable in not less than 14 days.

...

(4) If the plaintiff does not take out a summons for directions in accordance with the foregoing provisions of this rule, the defendant or any defendant may do so or apply for an order to dismiss the action.

(5) On an application by a defendant to dismiss the action under paragraph (4) the Court may either dismiss the action on such terms as may be just or deal with the application as if it were a summons for directions."

What the Court of Appeal did in Allen was, among other things, to disapprove of an apparent prior practice to the effect that the power to dismiss was never exercised on the first occasion when it was sought, the plaintiff's solicitor always being given a second chance. That, the Court of Appeal held, was a misuse of the Rules. To remedy the practice "High Court judges began to have recourse to the inherent jurisdiction of the court to dismiss an action for want of prosecution even when no previous peremptory order had been made" (Birkett v James, per Lord Diplock, sitting in the House of Lords, at page 318; see also per Lord Denning MR in Allen at page 245, and per Salmon LJ at page 268). Thus the power in the Rules to dismiss for failure to take out a summons for directions was, by use of the inherent jurisdiction of the court, effectively enlarged to a power to dismiss for want of prosecution. In Bremer Vulcan Lord Diplock, again in the House of Lords, gave at page 977 a fuller explanation of the basis on which the High Court might dismiss an action for want of prosecution. He said:

"The High Court's power to dismiss a pending action for want of prosecution is but an instance of a general power to control its own procedure so as to prevent its being used to achieve injustice. Such a power is inherent in its constitutional function as a court of justice. Every civilised system of government requires that the state should make available to all its citizens a means for the just and peaceful settlement of disputes between them as to their respective legal rights. The means provided are courts of justice to which every citizen has a constitutional right of access in the role of plaintiff to obtain the remedy to which he claims to be entitled in consequence of an alleged breach of his legal or equitable rights by some other citizen, the defendant. Whether or not to avail himself of this right of access to the court lies exclusively within the plaintiff's choice; if he chooses to do so, the defendant has no option in the matter; his subjection to the jurisdiction of the court is compulsory. So, it would stultify the constitutional role of the High Court as a court of justice if it were not armed with power to prevent its process being misused in such a way as to diminish its capability of arriving at a just decision of the dispute.

The power to dismiss a pending action for want of prosecution in cases where to allow the action to continue would involve a substantial risk that justice could not be done is thus properly described as an "inherent power" the exercise of which is within the "inherent jurisdiction" of the High Court. It would I think be conducive to legal clarity if the use of these two expressions were confined to the doing by the court of acts which it needs must have power to do in order to maintain its character as a court of justice."

The significance of the court's inherent power is thus recognised. The background of a rule of court does not appear to have been regarded as of material importance.

[30] In Scotland prior to Tonner a judicial lead had already been taken without the backing of a rule of court (Newman Shopfitters Ltd v MJ Gleeson Group plc, noticed by Lord Hope of Craighead in Attorney General's Reference (No.2 of 2001) [2004] 2 AC 72, at para 88; McKie v MacRae). In each case the inherent power of the court was invoked for that purpose. I am not persuaded that this was an illegitimate use of judicial decision-making or that there is sufficient cogency in the arguments presented to warrant re-examination by a larger court of the conclusion reached in Tonner that a judge could, in the exercise of his or her inherent jurisdiction and in the absence of a rule of court, dismiss an action in appropriate circumstances by reason of inordinate delay in its prosecution.

[31] It might be suggested that to introduce, otherwise than under a rule of court, a power to dismiss an action for want of prosecution is inconsistent with the orderly structure set by the Rules for the progress of an action from initiation to conclusion. But the Rules of Court are not exhaustive of all action which the court may take to progress or dispose of actions. For example, while Rule of Court 22.3(5)(a) provides for certain procedural steps which, after the lodging of the Closed Record parties may by agreement take, Rule 22.3.5(b) merely provides that, in the absence of agreement, the pursuer is to enrol for the cause to be appointed to the By Order (Adjustment) roll. No Rule of Court (under the current Rules) prescribes what the court may or must do at the By Order (Adjustment) roll; no rule empowers the court at procedure roll to dismiss an action on grounds of competency or relevancy or to grant decree de plano; no rule empowers the court, after proof, to grant absolvitor or to grant decree in terms of any of the conclusions of the summons. The power to make these substantive disposals is inherent in the court. Another example may be the granting of decree by default in circumstances other than those expressly dealt with in Rule of Court 20.1. These examples are not exhaustive. It may be said that these disposals have long been recognised and need not be spelt out in rules of court. But each of them must have had their origin at some point in the history of the court. Their longevity does not exclude the development by judicial decision of new practices.

The test for dismissal
[32] We were not addressed in detail upon the test to be applied by the court when considering whether or not to dismiss an action for want of prosecution. In Tonner the court (at para [136]) adopted for the purposes of its second criterion (the first being "inordinate and inexcusable delay") an approach which had been suggested by Reid and Blackie (Personal Bar at para 3.07), namely, that there be "an added element of unfairness ... specific to the particular factual context". It considered, but appears to have rejected, certain formulations mentioned in Birkett v James (see paras [134]-[135]). I have some doubt about the usefulness in this context of the Reid and Blackie approach - which was formulated not in the present context but in that of the common law test for mora. If, as appears to be the case, the reference to "specific to the particular factual context" is a recognition that contexts may vary and may require to be dealt with differently, I have no difficulty. But "an added element of unfairness" requires some explanation. It is not, in my view, any unfairness which will suffice. The dismissal of an action for want of prosecution, particularly where - as will commonly occur - any period of limitation or prescription has expired, is a draconian step. The unfairness in question must, in my view, be such that a "fair trial" is no longer possible - or at least that there is a substantial risk that it is no longer possible. Although that formulation may itself involve some imprecision, it is consistent with, and should reflect, the obligation on the court to ensure that a party has, in terms of Article 6 of the European Convention, a fair trial in the determination of his rights and obligations. That the denial of a fair trial is the overarching consideration appears to be recognised by the Extra Division in Tonner itself (see paras [61] and [101]; see also Moore v Scottish Daily Record, per Lord Justice Clerk Gill at para [13] . Mr Dunlop before us accepted it as the relevant criterion. He drew our attention to the recent decision of the Privy Council in Icebird Ltd v Winegardner, where that criterion is discussed - see especially paras 8 and 14.

Rule 21A
[33] We heard submissions in relation to the vires of Rule of Court 21A (effective from 1 December 2008). But, as a decision on that issue is unnecessary for determination of this reclaiming motion, I prefer to reserve my opinion on it.

The merits
[34] There remains for consideration the challenge to the Lord Ordinary's decision on the merits of the motion to dismiss for want of prosecution. I acknowledge that the decision of a Lord Ordinary on this matter is essentially "discretionary" in character and can be reviewed only on limited grounds. These would include the application of the wrong test and failure to take into account a material consideration.

[35] Some emphasis was placed by the reclaimer on the circumstance that the action had been sisted in May 1998 not on her motion but on the motion of the second respondents (and that "for investigation"); they had taken no steps to recall that sist. But the responsibility for progressing the action was with the reclaimer and her then solicitors. The summons had been served on a protective basis, apparently without the benefit at that stage of an expert report or reports. The reclaimer could at any time have enrolled for recall of the sist. Instead, although to advance her claim substantively she would have required legal aid, her then solicitors apparently took no steps to enable a legal aid certificate for the action to be obtained. Although they had been advised by counsel in a note accompanying the summons that expert reports would be required from both a consultant gynaecologist and a consultant plastic surgeon, no steps to obtain such, or funding for such, appear to have been taken. All that was done was to obtain in late 1998 a medical report about the reclaimer's ongoing treatment. Thereafter action at local level seems to have ceased and remained so until these agents withdrew from acting in the latter part of 2004. It is not maintained that the inaction by these solicitors was otherwise than inexcusable.

[36] The nature of the reclaimer's condition which had led to operative treatment was most unusual. Preparation of a case for reparation, including the obtaining of any expert report or reports to support it, would inevitably take time. When new agents were instructed by the pursuer in November 2004 they set about recovering the previous agents' files and progressing the claim. Very detailed enquiry was necessary, including the obtaining of a number of expert reports. In the light of these reports adjustments to the reclaimer's pleadings were framed. These were intimated in November 2007. It is not suggested that there was any dilatoriness in the steps taken in the three year period between November 2004 and November 2007. Indeed, these agents appeared to have acted with all due expedition. Significant cost was no doubt incurred on the reclaimer's behalf.

[37] The incurring of such cost is relevant to the issue of whether or not an action should be dismissed for want of prosecution. In Allen v Sir Alfred McAlpine & Sons Ltd Diplock LJ said at page 260:

"Since the power to dismiss an action for want of prosecution is only exercisable upon the application of the defendant, his previous conduct in the action is always relevant. So far as he himself has been responsible for any unnecessary delay, he obviously cannot rely upon it. But also, if after the plaintiff has been guilty of unreasonable delay the defendant so conducts himself as to induce the plaintiff to incur further costs in the reasonable belief that the defendant intends to exercise his right to proceed to trial notwithstanding the plaintiff's delay, he cannot obtain dismissal of the action unless the plaintiff has thereafter been guilty of further unreasonable delay."

These observations are, in my view, equally relevant to proceedings in Scotland.

[38] On 11 November 2004 the court on the respondents' motion, in respect that the reclaimer's original agents had intimated that they were no longer acting for her, ordained the pursuer to intimate whether she was insisting on her action. She intimated that she was so insisting. She also instructed new solicitors who by late November were in communication with the respondents' solicitors. (It may be noted at this point that, although the respondents were at one time separate bodies, their whole rights and liabilities have since been assumed by Greater Glasgow Health Board; they appear to have been represented throughout by the same group of solicitors, the Scottish Health Service Central Legal Office). In early December 2004 letters were sent by the reclaimer's new solicitors to each of the hospitals in question requesting copies of the reclaimer's medical records. On 13 December 2004 the second respondents intimated defences to the action. On 23 December on their unopposed motion the sist was recalled, their defences received late and the cause sisted of new "to enable parties to carry out further investigations". Similar steps were taken shortly thereafter on behalf of the second respondents, their defences being received late on 19 January 2005. In February 2005 correspondence passed between the respective solicitors for the parties about the release of the medical records. On 6 September the reclaimer's solicitors advised the respondents' solicitors that a report had been obtained addressing the negligence of Dr Gilmore and that a report was now being sought addressing the negligence of Mr Webster. It was stated that thereafter the appropriate funding would be sought to proceed with the action in court. On 10 February 2006 the respondents' solicitors were advised that expert reports had been obtained and that a legal aid application was being processed. On 15 March legal aid (for the action) was granted. On 15 May the reclaimer's solicitors wrote to the respondents' solicitors requesting precognition facilities from Mr Webster and from two other clinicians involved in the reclaimer's care. The respondents' solicitors responded making certain enquiries. On 24 July the respondents' solicitors advised that one of these other clinicians was prepared to grant precognition facilities. On 4 August they gave like advice as regards Mr Webster. On 9 August the respondents' solicitors advised that the remaining clinician was also agreeable to providing a precognition. There was further correspondence about precognition facilities in October 2006 and again in December. On 11 January 2007 Mr Webster was precognosced on behalf of the reclaimer in the presence of the respondents' solicitors. Like precognition was undertaken of the other clinicians at the end of February and the beginning of March 2007. On 7 June the reclaimer's solicitors wrote to the respondents' solicitors advising them that it was the intention to proceed with the action. On 11 October the respondents' solicitors enquired whether the reclaimer's solicitors would disclose any of the medical reports which had been obtained. On 21 November 2007 on the unopposed motion of the reclaimer the sist was recalled and the reclaimer appointed to lodge an Open Record within fourteen days. During the period from November 2004 to November 2007 there had been numerous applications for, and grants of, legal aid for a variety of purposes in relation to the action. In these circumstances there can be no doubt that in that period the reclaimer incurred significant cost in the reasonable belief that, notwithstanding her earlier delay, the respondents intended to proceed to an adjudication of her claim on its merits.

[39] In her discussion of the issues the Lord Ordinary does not refer to any of this chronology - which, Mr Dunlop acknowledged, was accepted as accurate by the respondents. But it is, in my view, highly relevant. It seems that no specific submission was made to the Lord Ordinary in this respect. It was not fully developed before us, though a reference was made to para (7) of the "principles and guidelines" set out by Neill LJ in Trill v Sacher at pages 1398-1400 (reproduced in Tonner at para [39]). I regard it, however, as in the interests of justice that we take notice of the respondents' conduct. It is unnecessary to go so far as to categorise it as amounting to waiver or to some other specific bar, but it is material to the exercise of deciding whether or not to dismiss the action for want of prosecution. The Lord Ordinary, so far as appears, did not take that conduct into account. In that respect she, in my opinion, erred - although she can hardly be criticised for that error. She also may, in my view, have applied the wrong test. She asked whether a situation had resulted "where there has overall been an inordinate and inexcusable delay resulting in unfairness to the defenders" (para [24]). In adopting that test she was no doubt influenced by what was said in Tonner (especially as paras [134]-[136]). But, as I have opined earlier, it is not any unfairness which will suffice. The unfairness must be such that a "fair trial" is no longer possible - or at least that there is a substantial risk that it is no longer possible.

[40] In these circumstances this court is, in my view, entitled to consider of new whether on its merits this action should be dismissed for want of prosecution. The background to the claim is that the reclaimer had a very rare congenital condition which led to urinary symptoms for which she sought treatment. She underwent various hospital procedures including operative measures taken by Dr Gilmore, a consultant gynaecologist, and reconstruction measures taken by Mr Webster, a consultant plastic surgeon. These measures appear to have been complex and perhaps, in some respects at least, novel. If the reclaimer's averments are well-founded, she has been left with significant loss, injury and damage. The preparation of any case for reparation by her clearly required much diligence and energy on the part of those acting on her behalf. That is no excuse for the conduct of her previous solicitors who by their inaction seem singularly to have failed to have regard to her interests. However, the reclaimer, when she changed solicitors, had the good fortune to find representatives who were both diligent and energetic. The earlier narrative of events between November 2004 and November 2007 omits many steps which these solicitors took to investigate whether the reclaimer had a maintainable claim.

[41] When, six and a half years after the action was first sisted, no steps had been taken by the reclaimer to recall it or otherwise to progress the action, the respondents did not then attempt to have it dismissed for want of prosecution. Rather, they each in turn lodged defences. Thereafter, as is clear from the narrative, their solicitors were aware that steps were being taken on behalf of the reclaimer to investigate and progress her claim. They co-operated with precognition facilities being granted in respect of the three surviving clinicians and were in attendance when they were precognosced. They did not oppose the reclaimer's motion for recall of the sist and for appointment of the lodging of an Open Record, the next step in process. It was only thereafter that the respondents submitted a minute seeking dismissal of the action. That they did so at that stage is no doubt at least in part explained by the decision in Tonner having been issued in June 2007 and by the adjustments intimated by the reclaimer in November of that year making significant changes to her case. But, if Tonner was good law in 2007, its conclusion was also good law in 2004. It was not, even in Scotland, unprecedented. Lord Glennie had taken a similar course in December 2005 (McKie v MacRae), as had Sheriff Principal Macphail even earlier in March 2003 (Newman Shopfitters Ltd v MJ Gleeson Group plc). The concept of dismissal (or striking out) for want of prosecution was well-established in England and Wales. There is always a risk that as a case, particular a difficult or complex case, is further investigated, new lines will emerge which will find reflection in changed pleadings. This was particularly so when, as the respondents' solicitors knew, the reclaimer's solicitors were seeking expert reports from a range of consultants. In my view the respondents, having regard to the attitude that they evinced between December 2004 and November 2007, cannot now legitimately complain about the reclaimer's inaction between 1998 and 2004.

[42] Further, I am not persuaded that the prejudice occasioned to the respondents is such that a fair trial of any obligation in reparation incumbent upon them or either of them cannot take place. That there will be some disadvantage to them is clear. Dr Gilmore is no longer available to give evidence. Additionally, his death occurred prior to the new allegations against him being formulated, so that secondary evidence from him on these allegations is unavailable. The new cases presented against Dr Gilmore are of failure to offer the reclaimer medical therapy with retention of her ovaries and to discuss with her and a specialist plastic surgeon the risks and benefits of the surgical procedures which were proposed. These are in addition to the original cases, which in substance remain, that he had a duty not to remove her ovaries and to obtain her informed consent. The last mentioned cases were in the summons served in 1998 and no doubt Dr Gilmore's views on them were obtained prior to his death in 2002. They are, moreover, points which largely turn on independent expert evidence as to what was regarded as proper medical practice at the time. The same can be said about the new allegations of failure to involve a specialist plastic surgeon in discussions with the reclaimer pre-operatively and to offer her medical therapy. In so far as the reclaimer's case turns about what discussion, or absence of discussion, there may have been between Dr Gilmore and her, Dr Gilmore's absence may, of course, present a difficulty, if there are no medical records touching on the matter. But the prejudice should not be exaggerated. If there were no records, Dr Gilmore may even as at April 1998 have had no recollection of any conversation in private with the reclaimer in 1993-94. He may have been dependent on his usual practice, to the terms of which others may be able to speak. The onus of proving her case will rest upon the reclaimer. The court in assessing her evidence will be entitled to take into account the passage of time and any prejudice which the respondents legitimately may have sustained in seeking to rebut her testimony.

[43] As to Dr Webster, he is available. He was precognosced for the reclaimer in the presence of the respondents' solicitors in January 2007. It was noted that he then said that, the reclaimer's case being unusual, he had a clear recollection of it. The whole medical records relating to the reclaimer are available. In so far as the case against Dr Webster now turns essentially on what advice he gave, or failed to give, to the reclaimer, there may be a measure of prejudice. Again, however, it must be doubtful if his recollection of precise conversations, unassisted by notes (if the notes do not extend to the giving of oral advice), would have been different if asked about it six years (the sum of the period from the reclaimer's first operative procedures under his care to the raising of the action and the period from the instruction of the new solicitors to the intimation of the adjustments) rather than twelve and a half years after the event. Evidence can no doubt be adduced as to Dr Webster's usual practice at the time in relation to the giving of advice. The reclaimer, on whom the onus of proof again rests, will require to satisfy the Lord Ordinary that the requisite advice was not given to her. I am not persuaded that there is a substantial risk that the second respondents will be so prejudiced that no fair trial will be possible.

Conclusion
[44] In these circumstances I would recall the Lord Ordinary's interlocutor and remit to her to proceed as accords. I so move your Lordships.

Coda
[45] A word should be said about the Lord Ordinary's interlocutor by which she dismissed the action. She did so having first sustained the first respondents' first plea-in-law and the second respondents' second plea-in-law (their respective pleas to the relevancy). However, dismissal of an action for want of prosecution does not raise any issue of relevancy. The interlocutor might, without sustaining any pleas, have referred to the circumstance that the basis for the dismissal was that there had been inordinate and inexcusable delay resulting in such prejudice that no fair trial of the parties' rights and obligations could take place. Where under the procedure now in force by virtue of Rule of Court 21A a minute has been lodged and the crave of the minute is to be granted, the relative interlocutor should reflect the terms of that crave.

FIRST DIVISION, INNER HOUSE, COURT OF SESSION
Lord President Lord Reed Lord Carloway	[2010] CSIH71 A502/98 OPINION OF LORD REED in causa MICHELLE HEPBURN Pursuer and Reclaimer; against (FIRST) ROYAL ALEXANDRA HOSPITAL NHS TRUST and (SECOND) GLASGOW ROYAL INFIRMARY Defenders and Respondents: _______

Appellant: Hajducki, Q.C., Devlin, MacGregor; Allan McDougall

Respondents: Dunlop; R F Macdonald

27 July 2010

[46] I agree that this reclaiming motion should be disposed of as your Lordship proposes, for the reasons which your Lordship has given.

[47] As has been explained in such cases as Cordiner v H M Advocate 1973 JC 16, Hall v Associated Newspapers Ltd 1979 JC 1 and Moore v Scottish Daily Record and Sunday Mail Ltd 2009 SC 178, the court possesses an inherent power to do whatever is necessary in order for it to maintain its character as a court of justice. This power is described as "inherent" because it is essential to the court's performance of its constitutional function. It is distinct from the court's power to make rules of court having the force of law. Its juridical basis is the authority of the court to uphold, protect and fulfil the judicial function of administering justice according to law. This power is exemplified by punishment for contempt of court, and by the prevention of abuses of process, but is not restricted to those examples. As appears to have been recognised in the case of Moore (per Lord Justice Clerk Gill at paragraphs 13 and 14), the court's power to dismiss a pending action in circumstances of the kind which occurred in Tonner v Reiach and Hall 2008 SC 1 is a further example. If there has been such a delay in proceedings that the court cannot be satisfied that a just determination of the dispute remains possible, the only course open to the court, consistent with its function as a court of justice, is to bring the proceedings to an end. The court possesses the power to bring the proceedings to an end in such circumstances because it cannot otherwise fulfil its constitutional function as a court of justice.

[48] An understanding of the nature of the court's inherent power is the key to understanding the circumstances in which it can be exercised. Those circumstances cannot be reduced to a single formulation or test, unless the test is expressed at a level of generality which is unlikely to provide useful guidance in individual cases. In Tonner, for example, the court suggested that there must be "inordinate and inexcusable delay", and "an added element of unfairness ... specific to the particular factual context". Although that formulation correctly draws attention to the importance of the particular factual context, it respectfully appears to me that it is too vague to be useful, and that it fails to reflect clearly the nature of the power which the court is exercising.

[49] There may be cases where the particular circumstances, including delay in progressing the action, entitle the court to conclude that its process is being abused. As Lord Woolf, whose speech was concurred in by the other members of the Appellate Committee, observed in Grovit v Doctor [1997] 1 WLR 640 at page 647:

"The courts exist to enable parties to have their disputes resolved. To commence and to continue litigation which you have no intention to bring to conclusion can amount to an abuse of process."

If the court is satisfied that its process is being abused, then it is entitled to bring that abuse to an end.

[50] It is possible that there may also be cases where delay in progressing an action may not amount to an abuse of process, and may not prevent the court from reaching a just decision of the dispute, but may nevertheless have other consequences which are an affront to justice. Such a situation might arguably arise, for example, where there were inter-related claims and a delay in progressing one claim prevented a just determination of the other. The present case does not however raise any issue of that kind, and I mention the possibility of such an issue only to illustrate the risk that a single test may be unduly reductive.

[51] There are also cases where delay in progressing an action gives rise to a substantial risk, at least, that justice cannot be done if the proceedings are allowed to continue. In such a case, as I have explained, the court is entitled to bring the proceedings to an end, since it cannot be satisfied that a just determination of the dispute remains possible, and it is therefore unable otherwise to fulfil its function as a court of justice. The existence of such a risk to the administration of justice must however be shown to arise in consequence of the delay, in the particular circumstances of the case in question. Such a risk existed in the case of Tonner. It has not been shown to exist in the present case.

FIRST DIVISION, INNER HOUSE, COURT OF SESSION
Lord President Lord Reed Lord Carloway	[2010] CSIH 71 A502/98 OPINION OF LORD CARLOWAY in causa MICHELLE HEPBURN (A.P.), Pursuer and Reclaimer; against (FIRST) ROYAL ALEXANDRA HOSPITAL NHS TRUST and (SECOND) GLASGOW ROYAL INFIRMARY Defenders and Respondents: _______

Act: Hajducki, Q.C., Devlin, J MacGregor; Allan McDougall

Alt: Dunlop; R F Macdonald

27 July 2010

[52] I agree with Your Lordship in the chair that the Lord Ordinary's interlocutor must be recalled and the case remitted to the Outer House to proceed as accords. I agree with all of Your Lordship's reasoning except in one area. That area might conveniently be called that of "judge made law" and centres on the legitimacy of what was done in Tonner v Reiach and Hall 2008 SC 1.

[53] For the reasons given by Your Lordship, the Court of Session is not a "statutory court", even if its jurisdiction has been affected by statutory provisions, some ancient, some new. It is the supreme civil court in Scotland and has an inherent power to do whatever is necessary to discharge its functions and to control those of inferior courts and tribunals. That power is not limited by the existence of the delegated legislative power to regulate its own procedure by Act of Sederunt (College of Justice Act 1540 (Mar 14, c10; APS ii, 371). It is not necessary, in the context of civil procedure, for the exercise of a recognised power for that power to have been regulated by the Rules of Court. There are many procedures involving the exercise of powers which have evolved over time in accordance with practice and which have never been enshrined in the Rules. Indeed, it is only since the Act of Sederunt (Rules of the Court of Session) 1994 (SI 1994 No 1443) that the Rules have taken on the appearance of a reasonably comprehensive code; previous versions being much more sporadic in the areas positively governed (vide the Act of Sederunt (Rules of Court, Consolidation and Amendment) 1964). Where there is no rule or practice, a court may require, of necessity and in certain circumstances, to create a practice in order to ensure that justice is achievable.

[54] However, the existence of an inherent power in the Court to do what is necessary to discharge its function does not provide a Division or single judge of the Court with an absolute and discretionary power to do what it or he considers ought to be done in a given case in accordance with that Division or judge's notion of what justice requires. If it did, then the rules and practices of the Court, some of which are of great antiquity and authority in origin, would require to be viewed as no more than procedural guidelines. Where there is a rule, or a practice sanctioned by the Court, it requires to be followed until altered in the appropriate manner and not by a single court. In the case of a Rule of Court, alteration is done by Act of Sederunt. With a practice sanctioned by the Court, amendment can also be achieved by Act of Sederunt or a Full Bench could conceivably over-rule an old practice and devise a new one.

[55] The issue in this particular case is not whether the Court is entitled to dismiss an action because of, put shortly, delay. Of course it can, if the substantive law sanctions such a course. It does so sanction. If a party were to plead mora, taciturnity and acquiescence (in relation to pre-action delay) or a breach of article 6 of the European Convention on Human Rights and Fundamental Freedoms (in relation to pre or post action delay), then the Court would have to rule upon the particular plea-in-law focussing that issue. That is what was done by the Lord Ordinary in McKie v MacRae 2006 SLT 43 (see paras [17] and [18] where the action was dismissed because of delay). The real issue concerns the procedural mechanism by which the Court is empowered summarily to dismiss an action, or possibly assoilzie a defender, because of delay.

[56] Prior to Tonner v Reiach and Hall 2008 SC 1, the procedure of the Court was well known and settled. An action could be brought to an end, in advance of a proof or jury trial, in a number of possible ways. Traditionally, there were two routes. First, the Court could dismiss a case, or in certain situations grant decree of absolvitor and in others decree de plano, if a party failed to abide by a particular rule or order of the Court. Dismissal was, for example, an option in the event of a pursuer not complying with procedural steps such as timeously lodging an Open or Closed Record (rc 22.1, 3). Failure to abide by a specific order of the Court, such as one to find caution for expenses, could result in decree by default. Secondly, the Court could dismiss a case, or grant decree de plano, after a debate on the Procedure Roll on the basis of the irrelevancy of a party's averments or some other preliminary plea. That could include a plea relating to delay. Although a plea of mora is one to the merits, an action might be dismissed if a pursuer's response to a defender's averments of mora were deemed irrelevant. More recently, in response to complaints of dilatory defences, the Rules of Court have provided that the Court can grant summary decree in favour of a pursuer in advance of a debate on the Procedure Roll (rc 21.2). But it is by no means without significance that the new rule specifically did not permit the summary dismissal of actions. However, it did create a third general method whereby a case could be dealt with in advance of proof or jury trial. The new rule (21A) adds a fourth.

[57] The important feature to be recognised is that the settled procedure of the Court is that, unless there is a procedural or other default on the part of a party, the Rules of Court prescribe the route which a case is required to take. Unless there is a successful application for Summary Decree, and now for Summary Dismissal, the Rules guide the case towards resolution by way of open record, adjustment, closed record and onwards to Procedure Roll for consideration of preliminary pleas and/or, potentially, ultimately proof or jury trial (rc 22.3.(5)). The Rules do provide, and it is universally accepted, that the place to consider preliminary pleas, unless they are reserved for proof before answer, is at Procedure Roll. An action should not therefore be brought to an end in a summary manner because a court perceives some inequity in substance or procedure. The Rules of Court are not in existence for their own sake. They have developed over time in accordance with the Court's perception of the appropriate procedure for dealing justly, fairly and expeditiously with the cases before it. Judges have to accept that perception and should not substitute their own, potentially idiosyncratic, views on what procedure might best fit a particular case.

[58] Prior to Tonner v Reiach and Hall, it would have been surprising to find a single competent Scots litigation lawyer who considered that a case could be summarily dismissed by the Court other than in accordance with these settled procedures. That would be so despite frequent pressure from some quarters to create such a summary remedy, notably that of "striking out" cases, a practice understood to be prevalent in England, no doubt following Allen v Sir Alfred McAlpine & Sons Ltd [1968] 2 QB 229, and other jurisdictions. Parties to a litigation are entitled to expect that their cases will be dealt with in accordance with settled procedure and not to have new practices thrust upon them suddenly and, one might hazard, randomly in the course of that procedure. Where there are existing Rules in force, a Court should not depart from them, except in so far as expressly permitted (rc 2.1). Were the law to be otherwise, the dangers of inconsistency, whim and caprice would loom large. The Extra Division in Tonner v Reiach and Hall invented a new procedure which cut across the existing Rules of Court and settled practices. The Division was not filling a procedural lacuna. The Court already had procedures which enabled it to deal with delay, whether pled in the context of mora or Article 6 of the Convention.

[59] For these reasons therefore, had it been necessary to do so, I would have moved Your Lordships to assemble a larger court to reconsider the decision in Tonner v Reiach and Hall, which otherwise remains binding on this Court. As it transpires, a review is not required. In that regard, I do not regard what was said by the Lord Justice-Clerk (Gill) in the Full Bench case of Moore v Scottish Daily Record 2009 SC 178, and with which I agreed, as approving the decision in Tonner v Reiach and Hall as distinct from accepting some of the dicta therein concerning dismissal for abuses of process.