A limitation defence will not be taken in personal injury cases in the Scottish courts where the limitation period ends during the current restrictions on court business, under an agreement between the Association of Personal Injury Lawyers and the Association of British Insurer.
Since 30 March, and until 20 April 2020 unless they advise otherwise, only urgent business is being dealt with at court – mainly relating to emergency family situations. This could put at risk personal injury claims where the three year period for bringing an action is about to expire.
The two representative bodies have now agreed that parties should take a consensual approach in relation to time limits and not seek to take unfair advantage of a party not complying with a procedural requirement. It means that no limitation defence will be raised by a party to the agreement in respect of any claim for damages for personal injuries which would otherwise “time bar” under ss 17 and 18 of the of the Prescription and Limitation (Scotland) Act 1973 between 30 March 2020 and 20 April 2020.
It is further agreed that, given the uncertainty of the present situation, and the potential for an extension of the restricted business period, the agreement will be reviewed no later than 13 April 2020.
Gordon Dalyell, APIL President and a partner at Digby Brown LLP commented: “As is to be expected, the current COVID-19 crisis is affecting all aspects of commercial and administrative life. As lawyers working in the claims sphere, the current requirements for self-isolation; the non-availability of our own staff, together with our clients, counsel and experts; and restrictions on travel and contact with others, are all creating significant challenges.
“It is clear that it will not be possible to continue with ‘business as usual’, and we welcome the steps that have already been taken to mitigate the problems. The statements of policy from the Court of Session, Sheriff Appeal Court, and All-Scotland Personal Injury Court are appreciated. In particular, we welcome greater use of telephone facilities, the submission of electronic documents, and the use of written submissions, to avoid the need to attend court.”
Alastair Ross, head of public policy for Scotland at the ABI added: “The current crisis requires all those involved in civil litigation to take account of the current circumstances in delivering upon the overriding objective. We expect parties and their representatives on both sides to take a responsible approach to personal injury litigation. Insurers will continue to see to settle claims where liability has been agreed as promptly as possible so that compensation awards can be paid.”
Both said they hoped the current crisis would be short lived and it would be possible to return to normal conditions as soon as possible. “Until then we are committed to taking all steps to work effectively alongside the Scottish Courts & Tribunals Service and the judiciary in maintaining effective dispute resolution.”
Minister for Community Safety Ash Denham MSP said: “The Scottish Government is doing everything it can to ensure that the justice system continues to operate during the COVID-19 emergency. I am grateful to APIL and ABI for finding a new co-operative approach to maintain effective dispute resolution during these unprecedented times. We will continue to engage with justice stakeholders as they assess the implications of COVID-19 and update their contingency planning arrangements accordingly.”