Will v. Argyll Clyde Acute Hospitals NHS Trust [2004] ScotCS 74 (19 March 2004)

Will v. Argyll Clyde Acute Hospitals NHS Trust [2004] ScotCS 74 (19 March 2004)

The failure to call the summons was due to an excusable oversight, not a deliberate disregard of the rules; both parties acted under a mistaken belief; the lapse of time, while significant, did not breach the defender's Article 6 rights given ongoing case preparation; Rule 2.1 is unqualified and allows relief in these circumstances; the motion is competent and relief is granted.

Citation
[2004] ScotCS 74
Parties
Pursuer: Susan Will; Defender: Argyll & Clyde Acute Hospitals NHS Trust
Jurisdiction
Scotland
Judgment Date
19 March 2004
Procedural Posture
Personal Injury Action for Damages (medical Negligence) / Motion to Invoke Dispensing Power Under Rule 2.1 to Allow Late Calling of Summons
Outcome
Motion granted; relief under Rule 2.1 allowed; action may proceed.
Legal Topics
Dispensing Power Under Court Rules, Excusable Procedural Default, Time Bar and Limitation, Article 6 ECHR (right to Fair Trial)
Civil Procedure Medical Negligence Dispensing Power Under Court Rules Excusable Procedural Default Time Bar and Limitation Article 6 ECHR (right to Fair Trial)

Case Brief

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Parties

Susan Will

Pursuer

Argyll & Clyde Acute Hospitals NHS Trust

Defender

Procedural Posture

Personal Injury Action for Damages (medical Negligence) / Motion to Invoke Dispensing Power Under Rule 2.1 to Allow Late Calling of Summons

Legal Issues

  1. 1 Whether the court should exercise its dispensing power under Rule 2.1 to relieve the pursuer from the consequences of failing to call the summons within the prescribed period
  2. 2 Whether the failure to comply with Rule 13.13(6) was excusable
  3. 3 Whether granting relief would breach the defender's rights under Article 6 ECHR

Ratio Decidendi

The failure to call the summons was due to an excusable oversight, not a deliberate disregard of the rules; both parties acted under a mistaken belief; the lapse of time, while significant, did not breach the defender's Article 6 rights given ongoing case preparation; Rule 2.1 is unqualified and allows relief in these circumstances; the motion is competent and relief is granted.

Court Disposition

Motion granted; relief under Rule 2.1 allowed; action may proceed.

Orders

  • Motion to dispense with the consequences of failure to call the summons within the prescribed period is granted.
  • Question of expenses reserved.