SECOND DIVISION, INNER HOUSE, COURT OF SESSION

Lord Justice Clerk

Lord Brodie

Lord Drummond Young

[2013] CSIH 55

A294/07

OPINION OF THE COURT

delivered by LORD CARLOWAY, the LORD JUSTICE CLERK

in the reclaiming motion

DARREN JOHN CONQUER

Pursuer and Reclaimer;

against

LOTHIAN HEALTH BOARD

Defenders and Respondents:

_______________

Act: party

Alt: Stephenson QC; Central Legal Office

4 June 2013

[1] The pursuer sues the defenders for £250,000 in respect of their failure in 2003 to attend properly to an arm injury which he had sustained when keeping goal at a football match on 30 July 2003, almost ten years ago. The action was raised on the eve of the expiry of the triennium in July 2006 and sisted for "negotiations". By letter dated 24 August 2007 the pursuer's then agents, A & W Urquhart, withdrew from acting and, on 6 September 2007, the usual order was made in terms of RCS 30.2 ordaining the pursuer to intimate whether he intended to proceed with the action. He did so intimate by letter dated 17 September.

[2] The action was sisted again in December 2007, with agents Morton Fraser instructed. Nothing happened until January 2010, when his new agents withdrew again. The same RCS 30.2 order was pronounced asking him to intimate whether he insisted in the action. He stated that he did and new agents, namely Campbell Smith, confirmed that local Glasgow solicitors were acting. The action was once more sisted later that month. Nothing happened in the process until May 2011, when a further sist was ordered. In August 2011, the cause was restored to the adjustment roll. The record closed eventually in December 2011, only to be opened up again the following month. In June 2012 the pursuer's third set of agents withdrew from acting and the usual order was made and responded to. The case limped on with the same agents re-instated, still on the adjustment roll, until September 2012. Shortly thereafter a Procedural Roll diet was appointed on the new closed record and that was fixed for 5 December 2012.

[3] On 30 November 2012 the pursuer's agents intimated to the court that they were again withdrawing from acting. On 5 December, which was the peremptory diet for the Procedure Roll debate, the customary RCS 30.2 order was made. This time there was no intimation that the pursuer intended to proceed and, on 18 December 2012, the action was dismissed. This is then a reclaiming motion against that interlocutor.

[4] The court has before it an execution of service relative to the interlocutor, stating that it was served by messengers-at-arms at the pursuer's address on 7 December 2012. An affidavit from the messengers confirms that such service did take place. The house is a detached one and the messengers report that they confirmed that the pursuer, whom they describe as the "defender", was living at the address given (3 Stair Park). That was done by talking to a neighbour, who lived at number 4. Notwithstanding the existence of the execution of service and the affidavit, the pursuer maintains that he did not receive intimation and that the document must have been delivered to another address, perhaps in a neighbouring street. He states that the houses in the street where he lives do not have door numbers. He says that Bank Park is a very similar street. What is clear is that throughout 2012 the pursuer has had considerable medical problems, with operations in August 2012 and exploratory procedures on 27 October and 2 December. However, he advised the court that he had been discharged from the hospital on 5 December and that he was at home all day on 7 December, when service was said to have been effected.

[5] The position regarding progress of the action, in broad terms and from the pursuer's point of view, is that, as yet, he does not have an expert who will support his case, although he is optimistic that he will obtain the services of such an expert from Wales. He informs the court that Campbell Smith will accept instructions from him again. If that is so, it is no doubt upon certain conditions relative to payment of fees. The court does not have any confirmation from agents of their position.

[6] The court accepts the validity of the execution of service and is not inclined, in this process, to go behind that execution. The court proceeds therefore on the basis that proper intimation of the RCS 30.2 interlocutor was made. However, it notes the pursuer's considerable health problems, which have been properly vouched by medical reports. On that basis alone, the court is prepared to accept that the pursuer did not intend to abandon pursuit of the action. The court will, with considerable hesitation, allow this reclaiming motion and recall the interlocutor of 18 December 2012. However, it will do so on the basis of two conditions. The first is that the pursuer will be found liable in the expenses of the aborted Procedure Roll diet of 5 December, the subsequent hearing on 18 December and the reclaiming motion itself. The court is also concerned that, given the protracted nature of the proceedings, which has been caused, at least in part, by the pursuer's changes of legal representation, security for expenses should be found to cover the period up to and including a new Procedure Roll diet, which the court expects will be fixed for the autumn term. The second condition is accordingly that the pursuer be ordained to find security in the sum of £10,000 within 28 days. The pursuer has been advised that if he does not find that sum within that period, then the likelihood is that the action will be dismissed again. He has also been advised that it is his responsibility to pursue his action with reasonable despatch and that he is at risk of having it dismissed also if it is not pursued with suitable vigour over the months to come. The defenders have made their position on the relevancy of the pursuer's averments plain in their Note of Argument. It may be advisable for the pursuer to consider carefully the points made and whether, with the assistance of expert advice, they can be properly answered in advance of the new Procedure Roll diet.

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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> DARREN JOHN CONQUER v. LOTHIAN HEALTH BOARD [2013] ScotCS CSIH_55 (18 June 2013) URL: http://www.bailii.org/scot/cases/ScotCS/2013/2013CSIH55.html Cite as: [2013] ScotCS CSIH_55

Scottish Court of Session Decisions

Lord Justice Clerk

Lord Brodie

Lord Drummond Young

[2013] CSIH 55

Act: party