Earlier this month the Inner House of the Court of Session considered how long parties should have to wait for decisions from the court, and whether excessive delay meant that a fair trial had not taken place. The court decided that delay of a year in issuing a decision was indeed unreasonable, and in this case the decision was also inadequate. However, in the circumstances, as the court had no power to order a rehearing and as the claimants insisted on a rehearing, they had no effective remedy and the appeal failed.

This was a tragic case. It concerned a claim for damages on behalf of a child with cerebral palsy who will never be able to live independently; the child’s parents claimed that their daughter’s catastrophic condition was caused by asphyxia during delivery and that this was the fault of the hospital team. The issues were complex. The court had heard 22 days of evidence, followed by concluding oral submissions over three days supplemented with over 250 pages of written submissions. The case formally concluded on 7 February 2013, and the judge produced his opinion almost a year later on 23 January 2014. 

One of the issues the appeal court had to decide was whether this delay, along with the judge’s failure to give adequate reasons for his decision – he found against the parent claimants – meant that there hadn’t been a fair trial of the issues. 

What is too long?

  • The court completely accepted that issuing the judgement just short of a year after the case concluded was “unreasonable” and “simply too long”.
  • However, there are no fixed timing rules, and the court has to assess delay, and its consequences, in context. Whilst there was some criticism of the written submissions (the court would have found it “almost impossible” to summarise these), and the case was complex, the court was clear that there was nevertheless an unreasonable delay in issuing the decision a year after evidence had been heard.

What is the effect of unreasonable delay?

  • A serious delay can amount to a denial of justice under the common law of Scotland. It may also infringe the fair right provisions of article 6.1 of the European Convention on Human Rights.
  • The court accepted that an excessive delay can give rise to an inference that the judge has either forgotten or failed to understand the evidence. However that was not the case here and the court would be “slow” to draw that inference.

What is an adequately reasoned opinion?

  • Judges have considerable discretion to adopt their own approaches to the style and structure of their judgements. Whilst the court did not want to limit judicial autonomy, it considered that court opinions should:
    - make clear how issues of disputed fact have been resolved, and should be addressed to two audiences – the parties to the case and the wider public;
    - explain whether a witnesses’ testimony was credible or not;
    - explain how the law has been applied.
  • In this case the judge failed to explain adequately why he had resolved the issues before him in the way he did, his expression was terse, and he referenced material in a way that only the parties would understand. As a result the judgement was not adequately reasoned or transparent.

There was unreasonable delay, and an inadequate opinion, what was the remedy?

  • It was accepted by the court that there had not been a fair trial. As such, it was open to the court to reconsider, and determine, all the disputed issues in the case. This is what would normally happen in an appeal against the decision of a lower court. However, this is where the case becomes particularly unusual, and ultimately left the claimants without an effective remedy.
  • The claimants argued that because of the judge’s original failures, the case should be returned to a different judge to conduct a new proof or trial. They explicitly rejected the appeal court’s suggestion that – in the usual way – the appeal court should itself reach a view on the disputed issues of fact and decide the case. As a result the court went on to consider whether it was, as a matter of law, able to return the case to be retried by a single judge. In short did the court have the power to order a rehearing?
  • In many appeals under statute the court can order a rehearing. However, that is not the case for appeals against decisions from a judge deciding a case at first instance. But that is not what the court was asked to do. The claimants’ counsel insisted that the case needed to be re-heard, not determined by the appeal court. However, this was, in the view of the court both “entirely unprecedented” and also “incompetent”, and the appeal was therefore refused.

What is the position of the claimants?

  • The court was clearly troubled by the position this left the claimants in.  It was at pains to stress that it did not criticise the approach taken by their legal team. It therefore concluded by explaining (no doubt in large part for the claimants) that had it been asked to reconsider the issues – as would be usual - it would have upheld the decision of the original judge, even though his decision was late and not adequately reasoned. As such, a different outcome would not have been reached, and the appeal would still have been dismissed.

 

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