Dismissal for delay: Inner House guidance on chapter 21A: Abram v. British International Helicopters Limited
16 June 2014
Two Axiom members (Roddy Dunlop QC and Ross McClelland) appeared in a recent case in which the Inner House gave important guidance on the dismissal of cases for delay (Abram v. British International Helicopters Limited  CSIH 53).
The case arose out of a helicopter crash in the North Sea in 1998. The Pursuer raised his action (for damages under a modified version of the Warsaw Convention) shortly before the expiry of the two-year limitation period. Little substantive procedure took place in the court process, although extra-judicially the Pursuer was seeking to build a case that his PTSD was ‘bodily injury’ – a pre-requisite for a relevant claim under the Warsaw Convention.
The Court of Session has been authorised by rule of court to dismiss cases on grounds of delay since 2008 (chapter 21A of the Rules of the Court of Session). Abram is the first case in which the Inner House has applied the rule – having previously identified a similar power at common law (Tonner v. Reaich & Hall 2008 SC 1, Hepburn v. Royal Alexandra Hospital 2011 SC 20).
The decision in Abram clarifies a number of important points:
• The rule involves an exercise of discretion – but only once the threshold requirements of inordinate and inexcusable delay, and unfairness, have been established. In reviewing whether that threshold is met, the appellate court is not constrained by the limits which apply to the review of discretionary decisions.
• Even once the discretion arises, it may be exercised in favour of dismissal only if the court is satisfied that there is at least a substantial risk that a fair trial cannot occur. Thus the test set down in Hepburn continues to apply, even though it does not explicitly appear in the wording of the rule.
• In the modern era, it is not solely for Pursuers to progress their cases: the Court bears some responsibility (which it fulfills, for example, by reviewing sists), as does a Defender.
• The Court is entitled, in an appropriate case, to infer that the quality of evidence will have diminished over time. However, in future cases the court will expect specification of the evidence known to exist and to be led at proof, so that it can assess the extent to which its task at proof has been compromised by the delay.
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