ISABELLA PRIMROSE SMITH LEIGHTON OR HARDIE v. CATHEL H MORRISON & JOHN H FERRIS [2011] ScotSC 154 (05 October 2011)

ISABELLA PRIMROSE SMITH LEIGHTON OR HARDIE v. CATHEL H MORRISON & JOHN H FERRIS [2011] ScotSC 154 (05 October 2011)

The court found that there had been inordinate and inexcusable delay by the pursuer in progressing the action, resulting in unfairness to the defenders specific to the factual and procedural circumstances, including prejudice due to faded memories, loss of documents, and procedural complications. The requirements of Rule 15.7 were met, justifying dismissal of the action. However, the court declined to grant absolvitor, as the stage of proceedings and the nature of the plea of mora did not justify such a final remedy without further inquiry.

Citation
[2011] ScotSC 154
Parties
Pursuer: Isabella Primrose Smith Leighton or Hardie; Defender: Cathel H Morrison; Defender: John H Ferris
Jurisdiction
Scotland
Judgment Date
05 October 2011
Procedural Posture
Civil / Motion to Dismiss/absolvitor Following Lengthy Sist and Delay
Outcome
Action dismissed
Legal Topics
Inordinate and Inexcusable Delay, Dismissal for Want of Prosecution, Fair Trial Under Article 6 ECHR, Partnership Liability, Mora, Taciturnity and Acquiescence
Civil Procedure Contract Law Partnership Law Inordinate and Inexcusable Delay Dismissal for Want of Prosecution Fair Trial Under Article 6 ECHR Partnership Liability Mora, Taciturnity and Acquiescence

Case Brief

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Parties

Isabella Primrose Smith Leighton or Hardie

Pursuer

Cathel H Morrison

Defender

John H Ferris

Defender

Procedural Posture

Civil / Motion to Dismiss/absolvitor Following Lengthy Sist and Delay

Legal Issues

  1. 1 Whether the action should be dismissed or absolvitor granted due to inordinate and inexcusable delay resulting in unfairness to the defenders
  2. 2 Whether the delay has resulted in a substantial risk that a fair trial is no longer possible
  3. 3 Whether the defenders have suffered prejudice due to the delay, including loss of evidence and procedural complications

Ratio Decidendi

The court found that there had been inordinate and inexcusable delay by the pursuer in progressing the action, resulting in unfairness to the defenders specific to the factual and procedural circumstances, including prejudice due to faded memories, loss of documents, and procedural complications. The requirements of Rule 15.7 were met, justifying dismissal of the action. However, the court declined to grant absolvitor, as the stage of proceedings and the nature of the plea of mora did not justify such a final remedy without further inquiry.

Court Disposition

Action dismissed

Orders

  • Refuses parts 1 & 2, but grants part 3 of the defenders' motions 7/6 and 7/7, and in terms thereof dismisses the action
  • Continues the cause to 2 November 2011 at 2pm as a hearing on expenses