Delay At Your Peril

6th November 2008 saw the implementation of a new Court of

Session rule which clarifies the position in this court regarding

delays.

The new rule, in Chapter 21A states that "Any party to

a claim may, while that claim is depending before the court, apply

by minute for the court to dismiss the claim due to inordinate and

inexcusable delay by another party or another party's agent in

progressing the claim, resulting in unfairness."

In the past, the issue of delay and the consequences in

proceedings in Scotland has been unclear. In Esso Petroleum Co

Ltd v. Hall Russell & Co Ltd (No. 2) 1995, the defenders

sought for the action to be dismissed due to "inordinate and

inexcusable delay" on the part of the pursuers. It was argued

that the court had an inherent power to regulate its own procedure

and thus would have the necessary authority to dismiss the action.

Lord Johnston decided, however, that it would not be competent to

dismiss the action on grounds of delay as the Rules of Court

regulated procedure and, despite discussing failure to comply with

time limits, were silent on delay being grounds for dismissal.

This view by Lord Johnston can be contrasted with the case of

Newman Shopfitters Limited v. M J Gleeson Group PLC 2003

in which Sheriff Principal Macphail held that in a case of

inordinate delay, the Sheriff was entitled to grant decree in the

exercise of the inherent jurisdiction of the court. This approach

was followed in McKie v. MacRae 2006 with Lord Glennie

ruling that the purpose of the Rules of Court was not to be a

comprehensive guide, evidenced by stating: "that the court

can act in the absence of a Rule of Court is shown by its power to

sist proceedings, whether of consent or in the face of opposition

from one or other party." This view was also upheld more

recently in the Appeal Court in Barrie Tonner and Another v.

Reiach and...