Michelle Hepburn v. Royal Alexandra Hospital & Another [2008] CSOH 81

Motion for dismissal:- In this minute the defenders sought dismissal of the action on the basis of inordinate and inexcusable delay on the part of the pursuer in proceeding with the action. The pursuer raised a professional negligence action in 1998 against a consultant gynaecologist and a consultant plastic surgeon in connection with a rare congenital condition she suffered from which led to urinary symptoms for which she had sought medical treatment. The action was sisted on 28 May 1998 for further investigation and for a legal aid application to be processed. Nothing was done thereafter by the agents who were at that time instructed and who subsequently withdrew from acting on 21 September 2004. A new firm of solicitors received instructions in November 2004. It was submitted on behalf of the defenders that the delay between 1998 and the end of 2004 was inordinate and inexcusable and the pursuer could not justify it. It was submitted on behalf of the pursuers that the motion should be refused as it was a draconian power of last resort and the newly instructed agents could not be criticised in their actings and had performed satisfactorily since receiving their instructions in November 2004. Here the court considered whether the apparent delay had led to unfairness to the defenders.