In the recent case of Mannas v Chief Constable of the Police Service for Scotland [2018] CSOH 126, the Court of Session required to consider whether a delay of 13 years in progressing the action constituted unfairness and whether the case should be dismissed as a result.

The case concerned a road traffic collision which occurred in 2001. The pursuer was a passenger in a vehicle which was struck by a police vehicle responding to an emergency call. She sustained somewhat modest physical injuries but averred that as a consequence of the incident, she had suffered severe and continuing psychological injuries.

She raised a civil action against the Police in 2004. The action was sisted (stayed) to allow the pursuer to apply for legal aid, which was granted later that year. The action remained sisted until 2017, when the Police applied to the court to have the action dismissed.

In determining the application, Lord Tyre required to consider (a) whether there had been an inordinate and inexcusable delay in progressing the claim; and (b) whether that delay had resulted in unfairness specific to the factual circumstances of the claim. If these criteria were established, he then had to consider whether it was in the interests of justice that the action be dismissed. He noted that the power to dismiss was a draconian one that should only be invoked as a last resort. There had to be a substantial risk that a fair trial could not take place.

Lord Tyre accepted that the delay introduced an element of unfairness into the proceedings. Despite this, he was not persuaded that the circumstances of the case were such that there was a substantial risk that justice could not be done. He noted that witness statements had been taken by police shortly after the incident, a police incident log was available and both parties had expert reports. He also pointed out that the burden of proof was on the pursuer and that if the court found the evidence to be too unreliable as a result of the delay, it would be the pursuer who would be prejudiced by failing to prove her claim. It was therefore more likely that the delay would negatively affect the pursuer’s case, rather than cause unfairness to the Police. He accordingly refused to dismiss the action.