Inordinate and Inexcusable Delay – Playing With Fire

The case of Mrs Razia Sultana formerly trading as IRUMS TAILORING against General Accident Fire & Life Assurance Corporation plc [2016] SC EDIN 40 serves as a timely reminder that inordinate and inexcusable delay in progressing a court action can result in the action being dismissed.

A fire occurred at the Pursuer’s premises on 10th March 1996. A court action was raised by the Pursuer against her Insurers in or around September 1998 for indemnification of losses incurred as a result of the fire. The Insurers defended the action on the basis they had no obligation to indemnify, averring the fire was set deliberately with an intention to defraud the insurers, or if not set deliberately, the Pursuer was in breach of the conditions of the policy.

A Proof was fixed to take place on 22nd October 2001 but was discharged because the Pursuer’s agents withdrew from acting. On 18th October 2001 a further Proof was allowed but on a date to be otherwise fixed.

No further Proof was ever fixed. A By Order hearing was fixed by the Court to be heard on 31st March 2016, over fourteen years later. However prior to the hearing the Defenders lodged a motion with the court seeking dismissal of the action for inordinate and inexcusable delay in terms of Rule 15.7 of the Ordinary Cause Rules. This was opposed by the Pursuer and submissions were heard.

The Defenders submitted that the lack of any progress of the action between October 2001 and March 2016 amounted to an inordinate and inexcusable delay on the part of the Pursuer. The Defenders had not been provided by the Pursuer with any excusable reason for the lack of progress in some 14 years or more.

There were two elements which required to be determined by the court. Firstly whether there had been an inordinate and inexcusable delay and secondly whether such a delay had resulted in unfairness.

On behalf of the Defenders it was submitted there had been unfairness suffered in four aspects: the whereabouts of witnesses, the deterioration of witnesses’ memories, the destruction of real evidence, and the quantification of the Pursuer’s loss.

The Pursuer, representing herself, submitted she had reasons for not progressing the action which included difficulties in obtaining representation by a solicitor. Ultimately the Pursuer argued justice could still be done and opposed dismissal of the action.

The court acknowledged a decision under Rule 15.7 should not be taken lightly and the test to be met was a high one. The court required to consider all the circumstances and decide whether there was at least a substantial risk that justice could not be done.

Having regard to all the circumstances the court was satisfied there had been an inordinate and inexcusable delay in progressing the action resulting in unfairness and there was at least a substantial risk that justice could not be done.

The court’s ability to analyse and determine the matters at issue in the court action would be compromised due to the poor recollection of the witnesses as well as the absence of material witnesses and evidence.

The court action was therefore dismissed.

In determining the issue of expenses the Court acknowledged primary responsibility for the delay rested with the Pursuer but found the Defenders could have attempted to minimise the delay by taking steps to bring the court action back into court. Expenses were accordingly awarded in favour of the Defenders but the Pursuer would only be liable for 80% of the expenses.

This is a very unusual case. Actions can often be sisted (put to sleep) for a considerable period of time but 14 years of inaction is certainly extreme.

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