The decision of the Inner House in the case of Hepburn v. Royal Alexandra Hospital 2010 CSIH 71 was issued on 27 July 2010. The Inner House overturned the decision of Lady Dorrian who had dismissed this medical negligence claim on the basis of inordinate and inexcusable delay on the part of the Pursuer that had caused unfairness to the Defenders. The action was raised in 1998 but was immediately sisted (stayed) for six years, after which time the Pursuer’s solicitors withdrew. Their replacements obtained a further sist for two more years, after which a fourteen page amendment was tabled in late 2007.
In reaching their decision the Inner House considered the legitimacy of the controversial decision in Tonner v. Reiach and Hall 2008 SC 1 with Lord Carloway criticising that judgement, calling for it to be reviewed and arguing that the Extra Division in Tonner had “...invented a new procedure which cut across the existing Rules of Court and settled practices."
In Tonner, the Inner House decided that a Judge in the Court of Session had an inherent power to put an end to a pending action on the basis that there had been inordinate and inexcusable delay together with an added element of unfairness in the relevant factual and procedural context. The power was described as a draconian power of last resort and prior to exercising such a power, the Court was required to assess each case carefully on its individual merits and particular circumstances.
In overturning the Outer House decision in Hepburn, the Inner House appears to be continuing a policy of retreat from the Tonner position in line with other recent judgements such as Rennie v Lothian Health Board 2010 CSOH 61 and Cameron v Hughes Dowdall 2008 CSOH 151 (in which Solicitor Advocate Paul Motion appeared on behalf of the Defenders) where Pursuers were allowed to continue despite the fact that these cases both appeared to meet the criteria for inordinate and inexcusable delay causing unfairness.
The Defenders in Hepburn and Cameron had understandably advanced the Tonner position and argued that the responsibility for running a case lay with the Pursuer regardless of the Defender’s position. However, if Hepburn does represent a further attempt to limit Tonner, Defenders in Scotland will require to temper their expectations of having cases dismissed for undue delay.
Contact:
Douglas Jessiman