SCTSPRINT3

 

SECOND DIVISION, INNER HOUSE, COURT OF SESSION

 

Lord Justice Clerk

Lady Paton

Lord McEwan

 

 

[2014] CSIH 53

A131/01

 

OPINION OF THE COURT

 

delivered by LORD CARLOWAY, the LORD JUSTICE CLERK

 

in the reclaiming motion

 

JOHN ABRAM (AP),

Pursuer and Reclaimer;

 

against

 

BRITISH INTERNATIONAL HELICOPTERS LTD

Defenders and Respondents:

 

_______________

 

Act:  Macdonald; Lefevre Litigation

Alt:  Dunlop QC, McClelland; Maclay Murray & Spens

 

12 June 2014

Preface
[1]        This is an action about an accident which occurred over a quarter of a century ago on 10 November 1988 when a helicopter, carrying the pursuer and fellow workers from an oil rig to Aberdeen, was forced to ditch into the icy waters of the North Sea.  The pursuer was rescued after about 50 minutes but avers that the incident caused him to suffer post traumatic stress disorder (PTSD).  He sues the operators of the helicopter, for “bodily injury suffered”, under article 17 of the Warsaw Convention. 

[2]        The action was raised in Aberdeen Sheriff Court as early as November 1990, on the eve of the biennial limitation period.  The issue in this reclaiming motion concerns whether the Lord Ordinary erred when dismissing the action, on account of inordinate and inexcusable delay resulting in unfairness under, and in terms of, Rule of Court 21A.1.  That rule provides that:

“(5)      … the court may dismiss the claim if it appears to the court that:

  1. there has been an inordinate and inexcusable delay on the part of any party or any party’s agent in progressing the claim; and
  2. such delay results in unfairness specific to the factual circumstances, including the procedural circumstances, of that claim.

(6)        … the court shall take account of the procedural consequences, both for the parties and for the work of the court, of allowing the claim to proceed.” 

 

Inordinate and Inexcusable Delay
[3]        The detailed history of the action can be found in the Opinion of the Lord Ordinary, to whom it appeared that there had been “inordinate and inexcusable delay” on the part of the pursuer or his agent.  Only a few salient points require repetition in order to support this particular conclusion; although it should be noted that in the reclaiming motion the pursuer did not dispute that there had been inordinate (ie excessive) cumulative delay, for which he was in part responsible.

[4]        The cause tabled on 5 December 1990, when, on the defenders’ unopposed motion (the same agent appeared for both parties), it was sisted “for negotiations”.  Although there was some activity behind the scenes aimed at obtaining legal aid and involving consultations with counsel and a medical expert, nothing actually happened in the court process for almost 8 years when, on 21 October 1998, the sist was recalled and the defenders were appointed to lodge defences.  The court has no difficulty in concluding that inaction in a process for almost 8 years amounts, in the absence of some quite extraordinary explanation, to inexcusable (as well as inordinate) delay on the part of the pursuer or his agent in progressing the claim.  All that the pursuer could say, in relation to a potential excuse, was that he did not, even now, have his former law agents’ file which may, or may not, have revealed such an explanation.  Given the extreme length of time which elapsed, this will simply not suffice.

[5]        On 13 January 1999, the cause was remitted to the Court of Session on the grounds of its importance and difficulty.

[6]        The record closed in June 1999, but the print was only lodged on 4 April 2000 when, on the defenders’ motion, it was appointed to a debate on the Procedure Roll scheduled for June 2000.  This diet was discharged by the defenders, albeit of consent; Notes of Argument for both parties having been received late.  At a further diet on 3 November 2000, the action was again sisted, of consent, this time to await the decision of the House of Lords in King v Bristow Helicopters 2002 SC (HL) 59.  This was forthcoming in February 2002.  Even then, the sist was not recalled until 12 June 2003.  The defenders were still insisting upon a debate, but a new Procedure Roll diet was only fixed in October 2004, and even then for a date a year later.  Very shortly before that diet the defenders changed their mind and, on 20 October 2005, a proof before answer was allowed on a date to be fixed later.  The period of over five years before this reflects inordinate and inexcusable delay on the part of both parties and their agents.  In this regard, however, the pursuer accepted that it was primarily a matter for him, rather than the defender or the court, to progress the action.

[7]        Although, once more, there were murmurings of, and even occasional correspondence about, settlement talks, fixing diets of proof and obtaining legal aid sanction to instruct another medical expert (with clinical qualifications), nothing whatsoever happened in the process until the present application by Minute to dismiss the claim under RCS 21A.1 was lodged in July 2012.  This additional period of almost 7 years amounts to further inordinate and inexcusable delay on the part of the pursuer or his agents in progressing the claim.  The pursuer attempted to justify the lapse of time by reference to events occurring extra-judicially, but the primary focus in determining whether there has been such delay should be on what has actually happened in the process, even if external events may be capable of shedding light on, and perhaps even providing some excuse for, any delay which has undoubtedly occurred. In this case, the material proffered as justifying the additional delay after the allowance of a proof falls far short of affording even a tolerably acceptable excuse.

[8]        In short, although the pursuer attempted to excuse the delays by reference to such very limited action as was occurring outwith the process, the court is entirely satisfied that the first leg of the test in RCS 21A.1.(5), relative to delay, has been made out; essentially for the reasons given by the Lord Ordinary.  This is so even if the Lord Ordinary may, as the pursuer maintained: (a) have misunderstood the timing of the averments about PTSD constituting bodily injury by reason of organic brain damage; (b) consequently also have failed to grasp that the need for an expert from outwith the United Kingdom had been noticed by the pursuer at that time; and (c) not have understood that the pursuer may not have been able to obtain legal aid sanction to instruct an expert when the cause was sisted, later subject to the defenders’ plea to the relevance, and thereafter the focus of settlement negotiations.

[9]        For completeness, the court does not accept, as the pursuer submitted, that, as a general proposition, the search for an appropriate, or supplementary, expert (or legal aid sanction for that expert) to give evidence in support of averments should only commence after the fixing of a diet of proof, as distinct from during the period before the averment is placed upon record. In that regard the practices of the Scottish Legal Aid Board are of only marginal significance to any decision of the court.

[10]      Although, as the pursuer attempted to point out, there were some periods of inactivity which, when isolated into short compartments, might be excusable in terms of the pursuer’s, or his agent’s, actings and may even be largely attributable to the conduct of the defenders, when the whole time span is examined, there can be no real argument but that the inordinate lapse of time was, and is, inexcusable and caused, at least in large measure, by the pursuer or his agents.  Grounds of appeal 1, 3 and 5 are rejected for these reasons.

 

Unfairness – the Lord Ordinary’s Approach
[11]      The Lord Ordinary considered that there were three requirements in RCS 21A.1.(5), notably, the existence of delay, caused by the pursuer and resulting in unfairness.  He examined and held “relevant” (para [5]) certain guidelines expressed in Tonner v Reiach & Hall 2008 SC 1 and derived from English practice (Trill v Sacher [1993] 1 WLR 1379, Neill LJ at 1398-1400) whereby an action could be “struck out” if delay had given rise to a “substantial risk that it would not be possible to have a fair trial … or the delay is likely to cause serious prejudice to the defendant”.  It was primarily for the pursuer to progress his case, since it was he who had availed himself of access to the court (Bremer Vulkan Schiffbau und Maschinenfabrik v South India Shipping Corp [1981] AC 909, Lord Diplock at 977).

[12]      The Lord Ordinary noted the criticisms of Tonner by the Lord President (Hamilton) in Hepburn v Royal Alexandra Hospital 2011 SC 20, but commented that it was not necessary to consider these as the wording of the rule had been derived from the dicta in Tonner.  In turn, the Lord Ordinary criticised (at para [7]) part of the Lord President’s analysis to the effect that any “unfairness” must be such as to render a fair trial impossible; preferring instead the second, weaker alternative, proposed by the Lord President whereby “at least” the unfairness created a substantial risk that a fair trial would no longer be possible.  The Lord Ordinary considered that the objective of RCS 21A.1 was that cases should proceed with due expedition; an objective so obvious that support from Article 6 of the European Convention was “scarcely necessary”.  There were two policy considerations underlying the objective, notably: (i) the risk of evidence being lost in the form of the destruction or mislaying of documents or real evidence and the impairment of the recollection of those otherwise destined to testify; and (ii) the unfairness, and perhaps financial and other consequences, to a defender in having litigation hanging over him for a prolonged period.  The Lord Ordinary considered that the policy considerations underlying the principles of the law of prescription and limitation were analogous in their focus on the deterioration of evidence (Brisbane Regional Health Authority v Taylor (1996) 186 CLR 541) and that delayed decisions had consequences for other litigation (Hepburn (supra), LP at para [50]).

[13]      The Lord Ordinary held that the unfairness element in RCS 21A had been satisfied for two principal reasons.  Given their central importance in the argument, these are worth quoting verbatim:

“[30]    … First, the symptoms of PTSD, if established, must have existed over a period of 24 years.  The pursuer’s case is that he suffered PTSD from an early stage, and it contains averments about the difficulty that he had in finding and keeping jobs in the 1990s.  Thus the early manifestations of PTSD, if they are established, must be of considerable importance.  The written records are not likely to be extensive; the pursuer may well have consulted his general practitioner; and it is said that he had been the subject of psychiatric examination during the 1990s, but much of the impact must be on his ordinary life, whether at work, socially, or at home with his family.  That impact is unlikely to be documented. Moreover it is not clear what supporting witnesses are available.  In view of the time that has elapsed, there must inevitably be severe doubts about the quality of evidence about what happened during the 1990s, especially in the absence of documentation.  This problem relates not merely to the pursuer’s difficulty in finding and keeping employment; it relates to the overall effect that PTSD had on his life.  It is therefore central to the pursuer’s case.  There is… a very substantial risk that the defenders will not be able to test the evidence about the pursuer’s state during the 1990s because of the poor quality of evidence that is available.

[31]      Secondly, there is … a significant risk that the defenders’ ability to test the expert evidence relating to PTSD will be impaired by the lack of good evidence as to what happened in the first 15 years or thereby after the accident.  The pursuer claims that a diagnosis of PTSD can be made on the basis of clinical tests alone, but that may well leave open the question of how seriously the particular pursuer is affected. Moreover, the pursuer has only raised the issue of physical causation of PTSD at a fairly late stage in the history of the action.  This means that the defenders have not been able to have examinations or tests carried out at a stage relatively soon after the accident, which could well result in prejudice. …accordingly… there is a significant risk that the delay that has occurred will result in important prejudice to the defenders in countering the pursuer’s evidence on the causation and the effects of the particular symptoms that the pursuer suffered.  It is true that at the proof the burden of making out his case rests firmly on the pursuer, and that the defenders would be entitled to draw attention to any prejudice that had been caused by the delay.  Nevertheless, the fundamental problem resulting from the lapse of time is that the evidence presented is likely to be incomplete and vague in important respects.  This is a hopelessly unsatisfactory basis on which to conduct a proof where both medical and legal issues are likely to be difficult. 

[32]      For the foregoing reasons, I conclude that the requirements for dismissal of the action under rule 21A have been met. I will accordingly grant the defenders’ motion for dismissal of the action… .”

 

Submissions
Pursuer
[14]      The principal ground of appeal in this area (ground no 2) was that the Lord Ordinary had erred in holding that the delay had resulted in “prejudice” to the defenders.  Tonner v Reiach & Hall 2008 SC 1 and Hepburn v Royal Alexandra Hospital 2011 SC 20 provided useful guidance on how the power conferred by RCS 21A ought to be exercised, notwithstanding that both decisions predated the introduction of that rule.  It was not “any” unfairness which would suffice, but unfairness which either rendered a fair trial impossible or produced a substantial risk of such impossibility (Hepburn (supra), LP (Hamilton) at para [39], Lord Reed at [51]).  The key to unfairness was the existence of “prejudice” such that a fair trial could not take place (ibid, LP at para [42])

[15]      Each case depended upon its own facts.  However, the Lord Ordinary had erred in his application of that guidance to the facts.  His conclusion in relation to the availability of records had been speculative.  His view, that the defenders might not be able to test the evidence of PTSD, built upon this speculation. Both parties had obtained their own psychiatric reports at an early stage in the action and evidence about any manifestations of PTSD would be readily available.  The Lord Ordinary had been unaware of what records existed, or what they said, yet he felt able to say that they would not be extensive or cover the impact of the pursuer’s illness.  This was despite the fact that the pursuer had had regular psychiatric contact after the accident.  He had been referred to a psychiatrist by his general medical practitioner in 1992 and had been seen by him, or his junior staff, on 36 occasions.  A letter dated 2001 discharging him from psychiatric care had summarised the position over a period of 13 years.  If the defenders sought to maintain that there was an absence of records, they ought to have obtained and lodged them. Equally, the Lord Ordinary was speculating about the quality of the testimony of supporting witnesses.

[16]      The Lord Ordinary had erred in stating that the averments about PTSD being the result of physical changes in the brain had been introduced at a “fairly late stage” in the action.  These had been on record before the cause had been sent to the Procedure Roll.  The Lord Ordinary had not been told what tests had been carried out by the defenders, nor what tests might have been appropriate nor why they could not be carried out even now.  If the evidence presented by the pursuer at proof were incomplete, the pursuer would be likely to fail because of the incidence of the burden of proof.  As it was, the maximum damages obtainable under the Warsaw Convention was 100,000 International Monetary Fund special drawing rights, which was the equivalent of about £100,000. It would not take much proof of psychiatric sequelae affecting earning capacity to reach such a sum.

[17]      In relation to RCS 21A.1.(6), the procedural consequences for the pursuer in having the action dismissed were that he would be deprived of any remedy against the defenders in circumstances in which, since 2005, they had accepted that they would be liable if the pursuer demonstrated that he suffered from PTSD and that that diagnosis was one of bodily injury.  He would have no remedy against his agents, since the prospect of an application such as the present would not have been in contemplation until at least the first instance decision in Tonner (supra) in 2005 (Hepburn (supra), Lord Carloway at para [58]).  Thereafter, agents had made valiant attempts to secure legal aid sanction to instruct an expert.  Sanction had been granted only on the day when the Lord Ordinary’s Opinion was issued.  An action against the Scottish Legal Aid Board for any delay would be fraught with difficulty.  The procedural consequences to the defenders were in the form of a “windfall”.  If the reclaiming motion were allowed, the defenders could renew their motion for dismissal if the medical and other records were in fact lacking in detail or there turned out to be a medical investigation that could not now be carried out.

[18]      The agreement to a proof before answer in October 2005 had occurred some 17 years after the accident and any prejudice to the defenders was unlikely to have changed after that (ground of appeal 4).  No such change had been identified by the Lord Ordinary.  The defenders must have been content with a proof at that stage. Although this may not have amounted to waiver of their right to seek dismissal (cf Allen v Sir Alfred McAlpine & Sons [1968] 2 QB 229, Salmon LJ at 272), it was incumbent upon the court to take the defenders’ conduct into account (Hepburn v Royal Alexandra Hospital (supra), LP at para [39]).  The defenders had themselves been responsible for considerable periods of delay.  It was the defenders who had moved to sist the cause for negotiations in the first place and later to await the outcome in King v Bristow Helicopters (supra), despite the pursuer’s contention (which turned out to be accurate) that King would not affect the issue.  It was the defenders who had moved to send the cause to the Procedure Roll, where it remained for many years.  The defenders had also indicated a wish to settle after the allowance of a proof before answer. They had then made a paltry offer.  They had sought a quantification of loss from the pursuer, but had then barely increased that offer.  The Lord Ordinary ought to have balanced the periods of delay for which each party was responsible and determined whether justice could be done as between the parties after a proof.

 

Defenders
[19]      The defenders’ first line of resistance was the contention that, standing the use in RCS 21.A.1.(5) of the word “may” and the phrase “if it appears to the court”, the Lord Ordinary’s decision was essentially a discretionary one.  As such it could be reviewed only on limited grounds (Hepburn v Royal Alexandra Hospital (supra), LP at para [34]; Birkett v James [1978] AC 297, Lord Diplock at 317; cf Tonner v Reiach & Hall (supra), Lord Abernethy at para [39]).  The wording in RCS 21A.1.(5) had been expressly derived from the terms of the Extra Division’s Opinion in Tonner (ibid at paras [133] to [138]), rejecting (at para [134]) the alternative formulae in Birkett v James (supra) of there being a substantial risk to the fairness of the trial or a likelihood of serious prejudice, in favour of a general “added element of unfairness” test (Tonner (supra), para [137]).  It was accepted that the First Division in Hepburn ((supra), LP at para [32]) had preferred the Birkett v James approach, but the court had not been addressed on the matter in Hepburn, and Tonner was binding.  In any event, whatever test were adopted, it had been met in this case.

[20]      The Lord Ordinary had not (at paras [30] and [31] supra) been speculating, but drawing inferences of fact about the deterioration of testimony (Shtun v Zalejska [1996] 1 WLR 1270, Gibson LJ at 1285; see also B v Murray (no 2) 2005 SLT 982 paras [21], [24] and [31], approved in AS v Poor Sisters of Nazareth 2007 SC 688, 2008 SC (HL) 146).  He had identified (at para [7]), as appropriate for the test, the language of risk rather than that of certainty.  The ability to challenge the pursuer’s ipse dixit concerning the effects of the accident had been substantially diminished by the passage of time.  Before he could successfully claim the £100,000 or thereby available under the Warsaw Convention, the pursuer had to prove that the accident had physically caused PTSD and that this, as distinct from other factors, had resulted in his being unable to work.  It was not necessary to identify specific evidence which had been lost.  By its very nature, loss over time was gradual but the Lord Ordinary had been entitled to hold that, given the amount of time that had passed, a proof would no longer be fair.  In that regard the Lord Ordinary was correct to say that the physical cause of PTSD had been introduced at a late stage and the pursuer still required the input of a clinician, looking at the case over a quarter of a century after the event.  This was, as the Lord Ordinary put it (para [31]), hopelessly unsatisfactory.

[21]      The Lord Ordinary’s reliance on the dicta in prescription and limitation cases (supra) had been appropriate.

 

Decision
[22]      It is important to observe in limine that, in this case, as distinct from the position in both Tonner v Reiach & Hall 2008 SC 1 and Hepburn v Royal Alexandra Hospital 2011 SC 20, the court is not being asked to invoke an inherent power to dismiss an action through want of prosecution. It is being asked to apply what is now a Rule of Court; the vires of that rule not being under challenge.  Accordingly, neither Tonner nor Hepburn is directly in point such that it binds the court in relation to how RCS 21A.1.(5) is to be applied.  It must be applied in accordance with its terms.  Although these terms, in so far as they stipulate that certain criteria must be established before dismissal can follow, are derived from some of the dicta in Tonner, the rule does not provide further guidance on the circumstances in which the discretionary power to dismiss ought to be exercised.  In that respect, on the assumption that the rule is intended to reflect (and not to stray beyond) what the Extra Division in Tonner had considered to be the extent of the inherent power of the court, the dicta in that case and in Hepburn, relative to the power’s extent, remain valuable. 

[23]      However, attempting to seek assistance from the wider fields of limitation and prescription, which are not directly concerned with the progress of actions as distinct from timeous notice of claims, is not a particularly fruitful exercise.  This is especially so relative to any equitable principles applicable to the revival of claims after the expiry of limitation periods (eg AS v Poor Sisters of Nazareth 2008 SC (HL) 146, Lord Hope at para [23] on the Lord Ordinary’s (Drummond Young) analysis in the court below (B v Murray (no 2) 2005 SLT 982) following Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, McHugh J at 555).  The analogy is not a close one, even if the general reflections on the deterioration of evidence over time may be instructive.

[24]      Although not focused in the grounds of appeal, the court is concerned that there may be an obvious error in the expression of part of the Lord Ordinary’s Opinion.  In paragraph [32] he appears to state that, because he found that “the requirements for dismissal … under [RCS] 21A.1.(5) had been met”, he had “accordingly” granted the motion, as if satisfaction of the criteria produced a compulsitor to do so.  This is not the correct approach.  It is only once the two criteria, specified in the two sub-paragraphs of RCS 21A.1.(5), of delay and unfairness have been made out by a defender (or a pursuer in a counterclaim) that the court goes on to consider whether, as a matter of judicial discretion, the power to dismiss the claim should be exercised.  The answer to the question of whether the criteria have been met does not involve the exercise of a discretion.  In that connection the phrase “it appears to the court that” is essentially superfluous.  The decision is certainly one of judgment initially for the court of first instance based upon the information provided by the parties.  However, this court may review that decision if it considers that the criteria, or one or other of them, have not in fact been met in terms of that information.

[25]      Once the court at first instance correctly determines that the criteria are met in a given set of circumstances, it must then go on to carry out what is the subsequent discretionary exercise, which is demonstrated by the use of the word “may” in the rule.  However, discretion is not caprice.  There requires to be some guidance beyond fulfilment of the two criteria as to when a court should, or should not, invoke the power in the rule to dismiss a claim.  It is in this area that the dicta in Tonner and Hepburn remain useful.  No doubt the overarching principle is whether it is in the interests of justice that an action should be dismissed or be allowed to proceed to an inquiry.  The starting point for a consideration of that broad principle is a recognition that the power is a draconian one of last resort (Tonner, paras [123] and [130] quoted in Hepburn, LP at paras [24] and [25]).  The Extra Division in Tonner explained (paras [61] and [101]) that the power at common law could be invoked in the event that a point had been reached when justice could not be done.  However, the Division appeared to back track almost immediately (at para [136]) from that restrictive approach in suggesting that, once inordinate and inexcusable delay had been made out, it was sufficient that there be only an “added element of unfairness”.

[26]      It was the vagueness, and perhaps even the weakness, of this expression that the First Division found unpalatable in Hepburn.  The Lord President (Hamilton) observed (at para [26]) that, in Moore v Scottish Daily Record and Sunday Mail 2009 SC 178, the Lord Justice Clerk (Gill) had referred (at para [13]) to the power being available where a “fair trial has become impossible”.  He derived assistance from Lord Diplock’s dictum in Bremer Vulcan Schiffau und Maschinenfabrik v South India Shipping Corp [1981] AC 909 (at 977) that the power in England was available “where to allow the action to continue would involve a substantial risk that justice could not be done”.  Thus he reached the conclusion (at para [32]) that, contrary to what appeared to be said in Tonner, “It is not… any unfairness which will suffice”.  Given the draconian nature of the power:

“The unfairness in question 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”.

 

The Lord President recognised the existence of a degree of imprecision in this formulation, but he expressly linked it to the fair trial requirement that the court requires to promote in terms of Article 6 of the European Convention (a matter to which Lord Carloway also made reference (at para [55]).

[27]      It is of particular importance to note the manner in which Lord Reed developed the matter in his concurring Opinion. He stated (at para [47]) that:

“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”.

 

He agreed (at para [48] that the formulation of “an added element of unfairness” in Tonner (and hence possibly also RCS 21A.1.(5)) is “too vague to be useful” and that it “fails to reflect clearly the nature of the power which the court is exercising”.  This is undoubtedly correct.  The mere presence of some unfairness in a case cannot, of itself and even when coupled with inordinate and inexcusable delay, be sufficient to warrant its dismissal.  It is, in the type of situation exemplified by the present proceedings, only where the “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” (Lord Reed at para [51]) that the power to dismiss should be invoked.

[28]      Drawing this together, whereas the somewhat vague element of “unfairness” is a necessary criterion for the application of the rule, the use of the discretionary power to dismiss, once the criteria in RCS 21A.1.(5) are satisfied, should only be exercised if the judge is satisfied that there is “at least” a substantial risk that justice cannot be done, or, put another way, that a fair trial cannot occur, if the proceedings are allowed to continue.  Given the draconian nature of the power, this test is a high one and involves the court being satisfied, in practical terms, that a just determination of the dispute is no longer possible.  In an action between private parties, if a fair trial does remain possible, in a realistic sense, justice must require a determination of the issue at stake even if some unfairness has crept into the process which the court may find difficult to remedy.

[29]      In reviewing the decision on this aspect, the normal principles relative to the review of a discretionary decision apply.  It has been explained above that the manner in which the Lord Ordinary has expressed his conclusion (at para [32]) might be seen as demonstrating an error of law in the proper construction of RCS 21A.1.(5).  However, when his Opinion is read as a whole, this conception disappears.  Although he appears not to have been happy to apply that part of the Lord President’s formula which requires a party to demonstrate the actual impossibility of a fair trial in the future, he nevertheless adopted a requirement not just of the presence of some unfairness but that such unfairness had created a substantial risk that a fair trial was no longer possible (see para [7]).  When he came to apply this test, he was therefore not simply granting decree of dismissal because the two criteria stipulated in RCS 21A.1.(5) had been met, but properly applying himself to the discretionary question of whether, in light of what was said in Hepburn, this was a case which merited dismissal because there was at least a substantial risk of a fair trial not being possible.  Indeed it is clear that he decided that, on the information provided to him, a fair trial was not possible.

[30]      The time scale in this action, which now stands at 25 years, without any substantive decision being taken on the merits of the case is, to put it mildly, startling.  The court cannot, of course, entirely absolve itself of responsibility for this occurrence.  It stems from the former laissez faire approach of the court to civil cases; that is to allow the parties to dictate the pace at which a litigation should move forward.  Following Anderson v United Kingdom [2010] 7 EG 100 the court has taken steps to ensure that actions cannot, even with the consent of all parties, remain sisted for indefinite periods and that any action, where there has been no or insignificant activity for six months, will be examined by a Lord Ordinary (Practice Note No.2 of 2010: Expeditious progress of causes in the Outer House).  Although the pursuer accepted that it was primarily for him to progress his case, the court does not accept either that, in the modern era, there is no onus on the other party to attempt to press for occasional progress.  On the contrary, if that other party is eventually to invoke the power under RCS 21A.1.(5) or otherwise to plead that his Article 6 rights are being infringed by the court’s failure to determine the case within a reasonable time, his actions must come under scrutiny also. In this case, it is evident that significant periods of time elapsed because of the defenders’ lackadaisical approach to the litigation; notably their contentment for the action to remain sisted for long periods and their decision, later reversed, to send the cause to the Procedure Roll, where it languished for some years.  That is a factor which must be taken into account.

[31]      Turning to the specific grounds of appeal, which challenge the Lord Ordinary’s reasoning particularly at paragraphs [30] and [31] of his Opinion, it is not speculation for a court to hold that, although there may be medical (including psychiatric) records relating to a person and covering a period of a decade or so after an accident, it is unlikely that the impact on that person’s ordinary (social, work and family) life would be documented.  It is a relatively obvious statement of probability (in the absence of contradictory material) that such an impact is not normally recorded and hence that, at any proof of the matter, the court would require to depend on witnesses’ recollections of any such impact without the assistance of contemporaneous notes to support or confirm what their memories had purportedly retained.  It is not speculation to state that there must be doubts about the quality of any unsupported testimony about what happened in the 1990s, especially in the absence of documentation.  It is again a fairly obvious statement about testimony given in relation to ordinary, in the sense of commonplace, activities, occurring over a decade ago.  The Lord Ordinary does not appear to have been told much, if anything, about what evidence was actually available to describe what could be an important element of the proof.  In these circumstances, he was entitled to call upon his long experience as counsel and a judge in expressing the view that the testimony at proof would be of poor quality, presumably by comparison with the norm, where it is adduced usually at least within 5 or so years of an accident, and consequently difficult to test because it would be likely to be of a general, if not vague, nature.

[32]      Equally, it is not speculation for a court to hold that there was a significant risk that the defenders’ ability to test the expert evidence relative to PTSD would be impaired by the lack of good evidence about what had occurred in the first 15 years or thereby after the accident.  The Lord Ordinary may have erred in his assumption about exactly when the averments of a physical cause of PTSD had been made.  However, given that they were only introduced in 1998, which was already a decade after the accident, a description of them as being put upon record at “a fairly late stage in the history of the action” is hardly inaccurate; even if the action meandered along for many years thereafter.  The Lord Ordinary was hampered by the lack of concrete information on what tests might be carried out on the pursuer to demonstrate a physical effect on the brain.  He can hardly reasonably be criticised for proceeding on the basis that the absence of medical testing for this effect, for over 10 years after the supposed cause, would be likely to be problematic.

[33]      It is important, of course, not to exaggerate the effects of the passage of time on the memory.  Decline in recollection is not a linear process and the rate of deterioration slows rapidly after the initial days, weeks or months have passed.  It is also important not to focus so much on how the defenders’ ability to test the evidence may have been adversely affected.  That is especially so in a case such as the present in which the defenders had timeous notice of the cause and were in a reasonable position to take such steps as were advised to protect their own interests.  The true issue is the degree to which the court’s ability to analyse the evidence has been compromised in the sense of it finding itself unable to do justice in the cause because of the predicted inadequacies in the proof.  Be that as it may, the Lord Ordinary has reached the express conclusion that the evidence to be presented is likely to be incomplete and vague in important respects.  Although the pursuer attempted to point to such evidence as would be available, including notably the testimony of the parties’ psychiatrists who had seen the pursuer within 2 years or so of the accident, he was not able to cause a significant dent in the Lord Ordinary’s conclusion on the likely deficiencies of proof.  That being so, it is also not possible to fault the Lord Ordinary in his conclusion, based upon inference rather than speculation, that “This is a hopelessly unsatisfactory basis upon which to conduct a proof …”.  If that is so, the stark reality is that the Lord Ordinary must have reached the view, even if he did not expressly say so, that a fair trial was no longer possible in this case.  In that state of affairs, for the reasons given by Lord Reed in Hepburn (supra), the only course open to the Lord Ordinary, was to bring the proceedings to an end.  The court is unable to fault this train of reasoning and it must follow that the reclaiming motion must fail.

[34]      In so holding the court is not endorsing any view to the effect that a fair trial cannot be held when the events to be examined are at such a distance in time.  Each case must depend upon its own particular circumstances.  In a case such as this, the fact that the action was raised timeously is of particular significance.  The defenders were on notice from an early stage that an action was pending and had their own opportunity to make appropriate investigations into the facts and to record material thought to be important in such manner as they thought fit.  However, it is a signal feature of this case that neither party seemed particularly enthusiastic in explaining what the available evidence actually is, as distinct from making submissions on what they anticipated it might eventually be.  The court would hope that applications of this nature will be rare in the future, given the court’s own efforts to ensure progress in cases where one or other of the parties seems disinclined to do so.  However, if further applications are made, it will expect far greater specification of the content of any prospective proof by specific reference to material known to exist relative to the averments on record.

[35]      For completeness, the allowance of a proof before answer in 2005, following the defenders’ decision not to proceed to a debate, is not of great moment, even if by no means irrelevant a factor. For whatever reason, and after several years of inactivity, the defenders decided that they should not attempt to argue that the pursuer’s case upon record was such that it could be dismissed, without inquiry into the facts, on the ground of irrelevancy.  Having made that decision, the only course of action open to the defenders was to accept that the next procedural stage would be a proof before answer. Such acceptance did not amount to a waiver, or other form of bar, preventing the defenders from seeking other remedies in the process.  It did not amount to an acceptance that a proof was inevitable or that there was no unfairness in having such a proof.  In any event a further significant period of delay elapsed thereafter.  The argument that the defenders had failed to prove unfairness in this particular phase is of relatively minor importance in a case where there have been earlier periods of delay caused by the pursuer.  The totality of the periods must be considered and the issue of unfairness looked at in relation to that totality when deciding whether the unfairness criterion has been met.  The court has no difficulty in holding that it was and that this decision to dismiss did not proceed upon any error capable of vitiating that discretionary decision.

[36]      The reclaiming motion is refused.