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KEITH THOMPSON AGAINST DR SAMIR YOUSSEFF SAYEGH AND SAYEGH ORTHODONTICS LIMITED

SHERIFFDOM OF LOTHIAN AND BORDERS AT EDINBURGH

 

2015SCEDIN10

 

Judgement

 

by

 

Sheriff Kathrine EC Mackie

 

In causa

 

Keith Thompson, XXXXX

 

Pursuer

 

Against

 

(First) Dr Samir Youssef Sayegh, having a place of business at XXXXX

And

(Second) Sayegh Orthodontics Ltd having its registered office at XXXXX

Defenders

 

 

 

Act: McLean Thompsons Solicitors Edinburgh

Alt: King BTO Solicitors Edinburgh

 

 

Edinburgh      11 February 2015

 

The Sheriff having resumed consideration of the cause varies the timetable in terms of Rule 36.H1(1), on cause shown, by allowing the pursuer’s statement of valuation of claim, the record, the pursuer’s list of witnesses and Inventory of Productions to be lodged not later than 8th January 2015; assigns a diet of proof to take place on 25th May 2015 and further varies the timetable so that the pursuer will lodge a pre-proof minute under rule 36.K1 not later than 4th May 2015; thereafter finds the pursuer’s agents personally liable to the defenders in expenses as taxed from 28th August 2014 up to and including the hearing on 8th January 2015 and all incidental preparation therefor;  allows an account to be given in and when lodged remits same to the Auditor of Court to tax and report.

 

 

 

 

Note

 

 

Introduction

  • [1]. This is an action for damages for, or arising from, personal injury and proceeds in accordance with Chapter 36 of the Ordinary Cause Rules.The Initial Writ was presented on 1st May 2014 and a warrant to cite the defenders was granted that day.The Writ was served upon the defenders by Sheriff Officers the same day.A Notice of Intention to defend was lodged on behalf of both defenders. The defenders enrolled a motion to sist the case for 12 months. The motion was opposed.The defenders did not insist upon their motion and by interlocutor dated 3rd July 2014 defences were allowed to be lodged.Thereafter a timetable was issued to parties’ agents in which proof was allocated to the week beginning 24th November 2014.In this court actions are allocated to an assize of one week’s duration with a diet of proof being assigned upon the lodging of the certified Record together with an appropriate motion.
  • [2]. In terms of the timetable the pursuer was required to lodge not later than 28th August 2014 a statement of valuation of claim.On 21st August 2014 the defenders lodged a motion to vary various dates in the timetable, including the date by which the pursuer was required to lodge a statement of valuation of claim, and the date of the assize to which the proof was allocated.The defenders also moved for commission and diligence for recovery of medical and dental records of the pursuer. The defenders’ motion was unopposed however, by interlocutor dated 29th August 2014, a hearing of that part of the motion in respect of the proposed variation of the timetable was assigned to take place on 11th September 2014.A copy of the interlocutor assigning the hearing was sent to parties’ agents.On 11th September 2014 after hearing the defenders’ agent the timetable was allowed to be varied.
  • [3]. In accordance with normal practice since there had been a hearing in court a copy of the interlocutor was not sent to parties’ agents.Although only the defenders’ agent appeared the pursuer’s agent was aware of the hearing and it would be expected that appropriate enquiries would be made to ascertain the outcome by examination of the interlocutor pronounced.However, I would observe that Rule 36.H1(4) provides that “Where the timetable issued under rule 36.G1 is varied under this rule the Sheriff Clerk shall issue a revised timetable in Form PI5”.No such revised timetable appears to have been issued by the Sheriff Clerk.
  • [4]. In terms of the timetable as varied the pursuer required to lodge a statement of valuation of claim no later than 23rd October 2014, a Record no later than 6th November 2014, and a pre-proof minute no later than 29th December 2014.The defenders were required to lodge a statement of valuation of claim no later than 20th November 2014.Parties were required to lodge lists of witnesses and productions no later than 24th November 2014.Proof was allocated to the week commencing 16th February 2015.
  • [5]. A statement of valuation of claim was lodged on behalf of the defenders on 19th November 2014.At the same time an Inventory of Productions for the defenders was lodged.A list of the defenders’ witnesses was lodged on 24th November 2014 together with a second Inventory of Productions.
  • [6]. On 24th November 2014, in accordance with the practice in this court, the Sheriff Clerk sent to the pursuer’s agents an email in the following terms:-“ The pursuer’s statement of valuation of claim in the above action was due to be lodged by 23 October 2014 and the record was due by 06 November 2014.To date these have not been received.In order to avoid a hearing under Rule 36.G1(3) please ensure that the statement of valuation of claim along with its supporting documents a record and a motion requesting that the valuation and the record to (sic) be allowed to be received although late is lodged with this office no later than 01 December 2014.. Please note that the motion should also include an explanation as to why the valuation and record were not lodged on time.”.No documents were lodged on behalf of the pursuer within the time allowed.Accordingly by interlocutor dated 10th December 2014 a hearing was assigned to take place on 8th January 2015.The pursuer was ordained to attend and in terms of Rule 36.L1 was required to lodge and intimate not less than two clear working days before the hearing a written explanation as to why the timetable was not complied with.A copy of the interlocutor was sent to parties’ agents by letter dated 12th December 2014.No explanation was lodged within the time prescribed.

    Submissions

  • [7]. At the hearing on 8th January 2015 the pursuer’s agent appeared.He produced, at the bar, a written explanation for his failure to comply with the timetable and tendered a statement of valuation of claim, a Record, albeit not certified, a list of witnesses for the pursuer and an Inventory of Productions.He moved that the court exercise its dispensing power to allow the documents to be received.He explained that there had been a series of oversights on his part.In anticipation of the defenders’ motion to vary the timetable being granted he had deleted the original timetable from his firm’s case management database.He had failed to act upon receipt of intimation of the hearing fixed to take place on 11th September 2014.He did not receive and took no steps to obtain a note of the outcome of the hearing and accordingly the timetable as varied was not put into the case management database and no reminders were automatically generated.He further prayed in aid pressure of business and the closure of his firm’s office between 23rd December 2014 and 5th January 2015.He advised that the pursuer was being examined next week with a view to addressing the points raised in the defenders’ reports numbers 6/4 and 6/5 of process.The need for further examination had been realised when the defenders’ productions had been received.The pursuer’s agent readily acknowledged his shortcomings and conceded that his firm should meet the defenders’ expenses from the date when the statement of valuation should have been lodged.The pursuer’s agent also moved that the proof and the date by which a pre-proof minute required to be lodged be varied.
  • [8]. The defenders’ agent produced a chronology.When intimating their statement of valuation of claim the defenders’ agents had raised with the pursuer’s agents the absence of any statement of valuation of claim for the pursuer.No response had been received.An offer to resolve the case was made to the pursuer’s agents on 24th November 2014 when the defenders’ list of witnesses and second Inventory of Productions was intimated.A period of fourteen days was allowed for acceptance of the offer.No response was received.On 29th December 2014 the defenders’ agents had written to the pursuer’s agents drawing attention to the fact that the pre-proof minute was due to be lodged that day.Enquiries were made about availability for a pre-proof conference.No response was received.By email dated 7th January 2015 the defenders’ agents received copies of the pursuer’s statement of valuation of claim, list of witnesses and Inventory of Productions.In response to a telephone call from the defenders’ agents pointing out that the pursuer’s agents had not complied with the interlocutor of 10th December 2014 they received a further email with a copy record and written explanation.The defenders’ agent opposed any variation of the date for proof.She advised that the defenders were prepared for proof.When it was pointed out that no diet of proof had been assigned due to the absence of the Record she moved for dismissal with expenses.
  • [9]. In reply the pursuer’s agent did not take issue with the factual background as narrated by the defenders’ agent or in the defenders’ chronology.With regard to the motion for dismissal he referred to paragraphs 14.12 and 14.13 of Macphail on Sheriff Court Practice.While he acknowledged that such a disposal was open to the court he submitted that the pursuer was not at fault and that if the pursuer was required to re-raise the action this would only result in further delay and prejudice to the pursuer.It was accepted that delay and expense had been incurred by the defenders.It was submitted that they would be compensated by an award of expenses against the pursuer’s agents.

    Discussion

  • [10].With the exception of the passages in Macphail I was not referred to any authorities.The passage in Macphail was written prior to the introduction of the rules in Chapter 36.Chapter 36 mirrors the rules in Chapter 43 of the rules of the Court of Session.Accordingly it was both surprising and disappointing that neither party’s agent made any reference to recent decisions of their Lordships regarding compliance with the timetable and variation thereof.Indeed neither party’s agent made any submissions based upon an analysis of the relevant rules and authorities.
  • [11].The underlying philosophy of, and the background to, Chapter 43 is set out in detail by Lord Jones in Smith-v-Greater Glasgow & Clyde NHS Health Board [2013] CSOH 178.A similar philosophy inspired the introduction of Chapter 36 in the Ordinary Cause rules and Chapter 34 in the Summary Cause rules of the Sheriff Court.Since the rules were introduced this court has attempted to adopt a similar approach to the Court of Session in the application of the rules particularly with regard to compliance with the timetable. Although not directly applicable regard is given to the relevant terms of Practice Notes which have been issued in the Court of Session in the absence of any specific guidance in this court.
  • [12].In this case the pursuer’s agent seeks to invoke the general dispensing power contained in rule 2.1 of the Ordinary Cause rules.That rule provides “The Sheriff may relieve a party from the consequences of failure to comply with a provision in these Rules which is shown to be due to mistake, oversight or other excusable cause, on such conditions as he sees fit.”Rule 2.1 is not qualified and it appears to be accepted now that the exercise of the dispensing power is not limited to exceptional or extraordinary circumstances.In Semple Cochrane PLC-v-Hughes 2001 SLT 1121 Lord Carloway said “[T]he court's discretionary power under rule 2.1(1) arises if two circumstances coincide.The first is that there is a failure by one party to comply with a provision of the rules……The second is that the reason for this failure must be due to mistake, oversight or other excusable cause……it is of note that the rule is not qualified by any words such as “exceptional or extraordinary circumstances” and I would be reluctant to read any such words into it.The rules of court are devised to regulate litigation and, in that regard, to assist both the parties and the court in arriving at a just conclusion in accordance with the law as expeditiously as is reasonable in all the circumstances.As a general principle, parties must, of course, abide by the rules and the sanctions which attach to any failure to do so.The dispensing power is, however, one which is nevertheless designed to enable the court to do substantial justice between the parties where, because of some failure to abide by the rules, that justice would not be secured.”
  • [13].The circumstances in which a party has been relieved of the consequences of a failure to comply with the rules are many and varied.As Macphail states at paragraph 5.95 “What will, or will not, be deemed to amount to a “mistake, oversight or other excusable cause” such as to persuade a court to exercise its discretion in favour or a party who, either personally or through his solicitor, has failed to comply with a provision in the Rules will depend very much on the whole circumstances of the case and possibly on the nature and importance of the rule concerned.”.However, Lord Reed, in delivering the opinion of the court in Brogan-v-O’Rourke Ltd 2005 SLT 29, a case involving compliance with Chapter 43, said at page 37 “we would observe that the rules of court are designed to serve the interests of justice by ensuring inter alia that cases are dealt with expeditiously without undue expense and without undue demands on the resources of the court.The interests of justice are not well served by an approach which too readily excuses failures to comply with those rules.”.
  • [14].In his submissions the pursuer’s agent made no reference to the specific provisions of Chapter 36 and in particular rule 36.H1.In short, rule 36.H1 provides that the timetable may be varied by the Sheriff on an application by any party by motion.An application shall be granted only on cause shown.As Lord Jones observed in Smith when considering the analogous provision in the Court of Session rules, an application for variation can competently be made after the due date as well as before.In Smith Lord Jones took the view that the motion before him to allow to be received, though late, a list of witnesses for the defenders was in effect a variation of the timetable.Chapter 43 gave him no power to allow the list of witnesses to be received late except in terms rule 43.8 namely by way of an application for variation of the timetable.Accordingly he treated the defenders’ motion as an application for variation of the timetable.At that time the rule required that special cause be shown for variation.The defenders were unable to show such cause.In these circumstances where Lord Jones considered that “there was no good reason let alone special cause” for failing to comply with the timetable he refused the application.Leave to reclaim was refused. Lord Jones took the view that to allow the defenders to reclaim would have resulted in a discharge of the proof to the prejudice of the pursuer who had complied with the timetable.
  • [15].In Moran-v-Freyssinet Limited [2014] CSOH 173 Lord Boyd considered at proof a number of motions including a motion on behalf of the defenders to allow the timetable to be amended (sic) to allow late receipt of a statement of valuation of claim.The motion was opposed.Lord Boyd was not satisfied that the defenders had shown sufficient cause and refused their motion.In doing so he said “It is of course the case that things may from time to time be overlooked. The court has recognised this in the recent removal of “special” from “special cause”.As Practice Note 2 of 2014 makes clear that was done to offer some comfort where there had been a failure to adhere to the timetable as a result of a simple inadvertence.However in this case the oversight was repeated and in any event ought to have been crystal clear to the defenders in preparation for the pre-trial meeting.”.
  • [16].Paragraph 2 of Practice Note 2 of 2014 provides “Rule 43.8 (applications for sist or variation of timetable order) provides that an application to sist an action or vary the timetable shall be granted only on cause shown.The purpose of this provision is to ensure that timetables are not easily varied and diets of proof consequently discharged.Accordingly motions enrolled under this rule, including those of consent, must specify the cause being relied on.Where it is not clear to the court that cause has been shown the court will ordinarily star the motion.The recent removal of “special” from “special cause” is to offer some comfort where there has been a failure to adhere to the timetable as a result of simple inadvertence, which may be regarded by the court as excusable having regard to the relevant circumstances; it is not to reverse the court’s approach to such matters as expressed in the case of Fiona Smith v Greater Glasgow and Clyde NHS Health Board [2013] CSOH 178.”
  • [17].It does not appear that either Lord Jones or Lord Boyd was invited to consider separately the exercise of the court’s dispensing power.It would appear that the view was taken that rule 43.8 is itself in the nature of a relief provision.While the dispensing power is not disapplied in Chapters 43 or 36 the terms of Lord Jones’ decision, in particular, and the Practice Note 2 of 2014 imply that where there has been failure to adhere to the timetable application for relief in the form of variation of the timetable should be made and may be granted only on cause shown.Cause is not defined and will depend upon the circumstances of each case.However having regard to the terms of Practice Note 2 of 2014 it might be argued that there is little, if any, difference between the considerations given to an application for variation following a failure to adhere to the timetable and the considerations which would be given to the exercise of the court’s dispensing power.In both situations the court would be giving consideration to any mistake, oversight or inadvertence and any other excusable cause.
  • [18].Rule 2.1(2) of the Ordinary Cause Rules provides “where the Sheriff relieves a party from the consequences of a failure to comply with a provision in these rules….he may make such order as he thinks fit to enable the cause to proceed as if the failure to comply with the provision had not occurred”.Accordingly, the Sheriff may make such order as will allow the cause to “get back on track”.However within Chapter 36, as in Chapter 43, provision is made for sanctions to be applied in specified circumstances.Rule 36.J1(5) provides “without prejudice to paragraph (2) of rule 36.L1 where a party has failed to lodge a statement of valuation of claim in accordance with a timetable issued under rule 36.G1 the sheriff may, at any hearing under paragraph (3) of that rule

     (a) where the party in default is the pursuer dismiss the action or

     (b) where the party in default is the defender grant decree against the defender for an amount not exceeding the pursuer’s valuation.” 

    Rule 36.L1 provides:-

    (1)       “Where the sheriff clerk fixes a date and time for a hearing under paragraph (3) or (8) of rule 36.G1 or paragraph (3) of rule 36.K1 he shall—

           (a)          fix a date not less than seven days after the date of the notice referred to in subparagraph (b);

           (b)          give notice to the parties to the action—

                                        (i)        of the date and time of the hearing; and

    (ii)      requiring the party in default to lodge in process a written explanation as to why the timetable has not been complied with and to intimate a copy to all other parties, not less than two clear working days before the date of the hearing.

    (2)        At the hearing, the sheriff—

           (a)          shall consider any explanation provided by the party in default;

           (b)          may award expenses against that party; and

    (c)          may make any other appropriate order, including decree of dismissal.

     

  • [19].Given that the purpose of the rules was to alter the “culture of a casual approach to timetabling” amongst practitioners identified by Lord Cullen in 1995 it is not difficult to understand why such sanctions were included in Chapter 43 and subsequently Chapter 36.It appears to me that it was intended that all matters relating to the procedure of an action for personal injury would be dealt with within the provisions of Chapter 36.
  • [20].For the foregoing reasons I consider that the pursuer’s motions should be treated as applications for variation of the timetable and accordingly the issue is whether sufficient cause has been shown.
  • [21].As Lord Boyd observed from time to time some step in process or other action may be overlooked however in this case the failure to comply with the timetable was repeated on a number of occasions.Firstly the pursuer failed to lodge his statement of valuation of claim with supporting documents not later than 28th August 2014, in terms of the original timetable.Secondly he failed to lodge the statement not later than 23rd October 2014 in terms of the timetable as varied.Thirdly he failed to lodge a record not later than 6th November 2014.Fourthly he failed to lodge a list of witnesses and his productions not later than 24th November 2014.Fifthly he failed to conduct a pre proof conference with the defenders’ agents and lodge a minute thereof not later than 29th December 2014, although given the previous failures such a conference would have been of little if any benefit.Finally I would observe that the pursuer also failed to lodge a written explanation for his failures as required by the interlocutor dated 10th December 2014.While the pursuer’s agent’s explanation might be considered reasonable in respect of one mistake or oversight it is difficult, if not impossible, to categorise the repeated failures in the same way.Although the pursuer’s agent was at pains to resist the suggestion that he ignored the requirements of the timetable it is clear that he did ignore or failed to act upon a number of reminders.He made certain assumptions about the outcome of the defenders’ motion for variation and failed to act upon notice that a hearing of the motion was to take place on 11th September 2014.Over a period of months he was in correspondence with the defenders’ agents about an examination of the pursuer but failed to have regard to the procedural position in the action.Intimation of the defenders’ statement of valuation of claim and Inventory of Productions failed to elicit any reaction.The defenders’ agents’ enquiry for the pursuer’s valuation failed to prompt any review of the position.The pursuer’s agent did not respond to a proposal for settlement notwithstanding a deadline of 14 days.An email from the court dated 24th November 2014 advising that the pursuer’s statement of valuation of claim and record were late and that they should be lodged with the appropriate motion to avoid a hearing provoked no response.Intimation of the interlocutor dated 10th December 2014 assigning a hearing also failed to elicit any response.Enquiry by the defenders’ agents on about 29th December 2014 about the pre proof conference also went unanswered although it appears that the pursuer’s agents’ office was closed at that time. Even when the pursuer’s agent did attempt to deal with matters the defenders’ agents required to remind him that a record was outstanding together with a written explanation for the failure to comply with the timetable.All documents were tendered only at the bar at the hearing on 8th January 2015.
  • [22].Given the foregoing history it is difficult to categorise the pursuer’s agent’s failures as a mistake, oversight or simple inadvertence.There is really no excuse for the pursuer’s agent’s repeated lack of action over a protracted period of time.The situation has all the hallmarks of situation where the pursuer’s case had become “toxic” for his agent and there was in fact an inability to deal with it.The circumstances which have arisen in the case reflect poorly not only on the pursuer’s agent personally but also on his firm who would appear not to have in place suitable risk management provisions to ensure that such circumstances cannot arise or, if they do, are picked up on regular and appropriate reviews of current work.
  • [23].In my opinion there has to be a sanction and to give the pursuer’s agent appropriate credit he acknowledged that.Rules 36.J1 and 36.L1 both provide, where the party in default is the pursuer, for dismissal of the action.As Lord Boyd said in Moran “The granting of decree is of course the ultimate sanction and one that should be rarely used.However it is one that is provided for in the Rules of Court.It is difficult to see a more serious breach of the requirement to lodge a statement of valuation than to get to a diet of proof without one being lodged.”It appears to me that the failures in this case are more serious.The failure to lodge a statement of valuation of claim prevents parties having the opportunity to consider at an early stage agreement in relation to quantum and a restriction of the issues in dispute.The failure to lodge a record prevents the assigning of a diet of proof or other procedure and prejudices both parties in achieving a conclusion of the proceedings.The failure to lodge productions prevents consideration of any areas of agreement and a focusing of the issues in dispute.Without a statement of valuation of claim and relevant productions there is little likelihood of a meaningful discussion at a pre proof conference had one taken place.The accumulation of these failures has prejudiced the prospects of early resolution and of proper preparation for proof.
  • [24].The responsibility for the situation rests with the pursuer’s agent.It was not suggested that the pursuer was at fault, for example by failing to respond to reasonable requests for instructions.In these circumstances the court should be slow to impose a sanction which might penalise the pursuer for the fault of his agent.As is said in Macphail at paragraph 14.13 “In all cases (before granting decree by default) it is desirable that the sheriff should consider whether the default is that of the party personally or of his solicitor…and if it is not that of the party personally whether it is in the interests of justice that the party should suffer by the default to the extent that decree should pass against him.”.As Lord Carloway said in Semple Cochrane PLC in referring to the exercise of the dispensing power what the court is required to consider is doing “substantial justice between the parties where, because of some failure to abide by the rules, that justice would not be secured.”.
  • [25].It was accepted by the pursuer’s agent that the pursuer’s claim was not time barred.Accordingly, if dismissed, the action could be re-raised.The pursuer’s agent indicated that that would be done.The pursuer would suffer some prejudice as a result of the delay occasioned by the re-raising of the action.In these circumstances dismissal of the action would not result in any conclusion for any party.From the pleadings the pursuer’s claim for damages arises from the alleged negligence of the first defender in connection with the provision of orthodontic treatment.I do not consider that it is appropriate to scrutinise the pleadings.Suffice to say that an action alleging professional negligence will be a matter of some concern to the first defender.Were the action to be dismissed the first defender would be prejudiced by the absence of a judicial determination in relation to the issue of negligence and, given the clear indication that another action would be raised, by the further delay, and no doubt further anxiety, before a conclusion could be reached.No diet of proof has yet been assigned.The pursuer’s agent’s failures can be rectified before proof.The relevant documents have now been tendered.In my opinion notwithstanding the deplorable failures to comply with the timetable in this case substantial justice between the parties will be served by allowing the action to proceed to proof.It follows that the appropriate sanction is to find the pursuer’s agents personally liable in the expenses, as taxed, from the original date by which the pursuer’s statement of valuation of claim ought to have been lodged, namely 28th August 2014 up to and including the hearing on 8th January 2015.
  • [26].Accordingly I will allow the timetable to be varied to allow the pursuer’s statement of valuation of claim, the record, the pursuer’s list of witnesses and Inventory of Productions to be lodged not later than 8th January 2015.I will assign a diet of proof to take place in the next available assize and will vary the date by which the pursuer will lodge a pre proof minute to not later than 21 days prior to said diet.