On 9 December 2008, a judgment overruling an authoritative court decision was issued by a bench of five judges in the Inner House in Craig Moore v The Scottish Daily Record and Sunday Mail Ltd. It might imply recognition that not all the criticisms levelled at parties and their representatives in the recent past arising from the disruption to civil court business caused by late settlements have been entirely justified.
The normal sanction upon a party whose conduct is deemed unsatisfactory by the court would be with reference to the expenses awarded to the opponent. In Billig v Council of the Law Society (No.2), a judgment issued in October 2007, the First Division of the Inner House had taken the previously unprecedented step of making an award in favour of the Scottish Court Service of the fees for a four day hearing which had not proceeded. A similar order was made later in another case. In Moore consideration was given to whether such an order would be competent. Billig was overruled. It is not open to the court, in the absence of an express statutory power to do so, to impose a financial penalty by way of an award of court fees to the courts’ administrators for a hearing that does not take place. It would not in any event have been appropriate to do so on the facts that applied to the late resolution in Moore.
The Lord Justice Clerk commented that late settlements provide judges the opportunity of dealing with other business for which time would otherwise require to be allocated formally, potentially increasing the strains upon the system. He recognised in addition that parties themselves have no remedy for wasted expenses from the Scottish Court Service when hearing dates are lost due to judges being unavailable. In relation to the issue of late settlements generally, the Lord Justice Clerk stated:
“The occurrence of a late settlement, at any level of our courts, does not of itself imply that there has been any abuse of the court’s procedures. On the contrary, the settlement of an action at the doors of the court may be a responsible exercise of professional competence. Late settlements occur for countless reasons, not all of which are, or should be, within the knowledge of the court. However frustrating, late settlements are part of life in the civil courts. They cannot be eliminated by legislation or judicial decree.”
Those with regular experience of the civil dispute resolution process might note the judiciary’s acceptance that we do not, after all, live in an ideal world.
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Graham Weatherston