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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Kilna v. De La Salle [2004] ScotCS 55 (05 March 2004) URL: http://www.bailii.org/scot/cases/ScotCS/2004/55.html Cite as: 2005 SCLR 154, [2004] ScotCS 55 |
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OUTER HOUSE, COURT OF SESSION |
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A3202/02
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OPINION OF LORD McEWAN in the cause CHARLES KILNA Pursuer; against DE LA SALLE Defender:
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Pursuer: Davidson; Drummond Miller, W.S.
Defender: Bowie; Burness, W.S.
5 March 2004
[1] This matter comes before me at the instance of the pursuer. Before calling the agents ask the Court to exercise its dispensing power under Rule of Court 2.1 and allow the case to call though late. The rule provides inter alia "... (1) the Court may relieve a party from the consequences of a failure to comply with a provision in these Rules shown to be due to mistake, oversight or such other excusable cause on such conditions, if any, as the Court thinks fit ...". Rule of Court 13.13(6) provides "... where a summons has not called within a year and a day after the expiry of the period of notice, the instance shall fall ...". In the present case it has been accepted that the Summons was signetted on 17 December 2002 and had to call by 18 December 2003. It is accepted that it was not able to be lodged for calling in time. The reason for that was that it could not be served on one defender in time.[2] Let me now look more closely at the nature of the action. There is one pursuer and eleven defenders. The facts of the action relate to alleged physical abuse and punishment of the pursuer when he was a child and detained in a List D School some 50 years ago. Some of the defenders are sued in an individual capacity and others in a representative capacity. The problem has arisen with one of the defenders designed in these words "... Brother Timothy Mullins, also known as brother Patrick , Miquel House, De la Salle, Castletown, Co Laois, Ireland NINTH DEFENDER ...". Unusually the numerical designation is after his name. This address is in the Irish Republic about half way between Dublin and Limerick. I was told the action was one of a large number of similar claims against the same defenders. There is one action which is to be the test case. The same agents in Edinburgh were acting for each pursuer instructed by Glasgow agents. These Edinburgh agents are known to the Court, respected and trusted and in their various amalgamations over the years have enjoyed the highest reputation.
[3] What has gone wrong in this. Against the background of all these actions, in the present one there has been no service on the ninth defender in time. On 9 January 2002 an attempt was made to serve on Brother Timothy. That did not succeed. The postal service was returned with no reason given for the delivery failure. Thereafter sundry procedure took place between solicitors over several months. These matters are specified on a pink sheet produced to me. It is not necessary to go into all the detail of this. The agents on 3 September indicated to Messrs Burness WS who were acting for the defenders, that they would lodge the Summons for calling. That did not happen, and a handwritten note on the copy of Burness's reply on 15 September reveals that they knew one service had failed. (The two letters were before me). Then on 4 November 2003 Drummond Miller instructed Scottish Sheriff Officers (Messrs Rutherford and MacPherson). They advised them that the signet would expire on 17 December. A reminder was sent on 21st. Rutherford & MacPherson replied on 25th (the letter was produced) saying they had applied to the relevant County Registrar for service to be effected, and had stressed the importance of doing so before 17 December. A further letter came on 2 December from Rutherford & MacPherson but without word of an effective service. Service was in fact done on 5 December by a Mr Dunne. As appears from his affidavit of Service dated 16 December 2003 and his Certificate dated 15 January 2004 the Summons was left with a brother David to be given to the ninth defender. This whole procedure was the subject of comment by Rutherford and MacPherson in a letter of 9 February 2004 to Drummond Miller. That letter shows that they were not entirely confident that service had been effected. They say, correctly, that the endorsation by Mr Dunne on the Summons is incorrect. That is true, but it appears now to have been corrected by someone. It is not clear when the affidavit reached Edinburgh. The certificate was sent on 19 February 2004. In the letter of 9 February, Rutherford & MacPherson write this "... Although understood that it was essential, was (sic) service effected before 17 December 2003, we did not appreciate that you would need to lodge the principal summons before that date, otherwise we should have sent the principal back to you, as soon as our instructions had been sent to Ireland ...". That letter enclosed the principal Summons and probably the affidavit. Some argument was directed to whether this was proper service under Rule of Court 16.1. I express no opinion on this as for present purposes it is nothing to the point. What I have to decide is whether or not to relieve the agents from the consequences of the failure. The consequences would be that the action would have to restart with inevitable further delay, expense and inconvenience to everyone. It was said, on both sides, that the action may be time barred anyway.
[4] I now move to summarise briefly the arguments. Mr Davidson asked me to apply the dispensation. The action was one of many. There were many defenders and the management of so many cases presented logistical problems. Service had been made in time and the late return of the paperwork was not the fault of the agents. Service had been effected on all the other defenders. The intention was, in any case, to sist this action to await the outcome of the procedure roll in the test case. The present case was not legally aided. Counsel then took me in detail through the chronology, especially the events of November and December. He referred me to McDonald v Kwok 1999 SLT 593 to which I shall return.
[5] Mr Bowie opposed the motion. He said a year and a day was a long time. The delay between January and November was unexplained and even after November insufficient steps were taken. The firms were experienced. There was no excusable cause. The power in the Rule should be exercised sparingly. The solicitors had not properly instructed the Sheriff Officer. McDonald was a case about competency. The motion should be refused.
[6] The case of McDonald v Kwok was, in my opinion, quite different to the scale of the exercise going on in this case. While the many other actions cannot affect my decision on this action, they are a background factor. In McDonald there was one pursuer, one defender, a Road Traffic Accident and the events were recent. In a carefully worded and clearly argued opinion the Lord Ordinary (MacFadyen) found the motion to excuse the failure to call the case in time to be competent. I think his decision is manifestly correct. I propose to follow it and I do not think it merits the strictures in the footnote to Rule of Court 13.13. I cannot improve upon his analysis and reasoning. I propose to apply the test he posed at 596F in these terms "... The proper starting point ... is to ask if there has been a failure to comply with a provision of the rules. If there has, it is open to the Court, if persuaded that the failure flows from an excusable cause and that as a matter of discretion it is appropriate to grant relief, to devise whatever steps are necessary to restore the situation which would have prevailed if the failure had not taken place ...". It is not reported what finally happened in McDonald and efforts before me to find out were inconclusive.
[7] Applying the above test, I propose to grant the motion and allow the case to call late. It is true there was a delay after the first service failed but I do not think it was incumbent on the solicitors to devote the next ten months to looking for the ninth defender. In my view, to instruct a reputable firm of Sheriff Officers in November is sufficient, and to issue reminders as necessary. That was done and the deadline was emphasised more than once. It has to be remembered that the service was outwith Scotland in a remote part of Ireland. It required the services of the Irish court and their process server. As a matter of fact service was done in time, but there was a delay in the completion and return of the necessary documents. That was the cause of the failure. That is not the solicitors personal fault though they have had to answer for it. In my view, that is a cause which is excusable. Whether I should excuse it is a matter for my discretion. I consider it right to exercise that discretion in favour of granting the motion. The agents gave proper instructions in good time to experienced people They were entitled to rely on them to get it right. The period of delay is not significant and to require the whole action to begin again is not to be encouraged, in the whole circumstances prevailing at the time and now. I was not asked to apply any conditions to the granting of this motion to the pursuer and I do not, myself, propose to impose any.
