Appeal judges in the Court of Session have upheld a decision to allow a damages action based on the Glasgow bin lorry tragedy to proceed against Glasgow City Council, although the claim would otherwise be time barred due to a failure by a solicitors' firm to comply with procedural requirements.
Lord Justice Clerk Lady Dorrian, Lord Menzies and Lord Malcolm held that Lord Doherty had acted within his discretion when he allowed the action by relatives of some of the six people killed in the incident in December 2014, to go ahead.
An action had been raised within the three year period allowed, in December 2017, but fell under court rules when the summons was not called in court within three months and a day of it being permitted to be served. When this was realised, in June 2018, a second summons was prepared and served the next day. The council argued that this action was time barred and should not be allowed to proceed; the pursuers asked the court to exercise its discretion under the legislation permitting it to do so if it was equitable in the circumstances.
Lord Doherty recognised that the pursuers had an alternative remedy against the solicitors, which was likely to succeed, but he considered that they would be very materially prejudiced by a refusal to exercise the court’s power, and having to instruct new solicitors would be very challenging for them particularly given the state of mental health of one of them.
On appeal the council argued that there was no evidence to support such findings, and the judge had failed to take account of the financial prejudice to the council of the case going ahead, and placed too little weight on the availability of an alternative remedy against the solicitors.
Giving the opinion of the court, Lady Dorrian said the judge was entitled to conclude on balance that the pursuers would be likely to require new solicitors they could trust, though it was the Edinburgh court firm rather than their own Glasgow solicitors who had been at fault. The Glasgow firm might be thought to have some responsibility and the judge was entitled to take into account the relationship that had developed between them and the pursuers.
In relation top delay, she continued: "The claim against the present reclaimers is one which is at the stage of having been fully investigated, has been quantified, where the reclaimers do not seek to advance any defence, where interim damages have been paid, and which the agents have agreed to settle on the basis of full liability. There have been many discussions relating to settlement of the claim. Should the alternative remedy against the agents be pursued, whilst there may be no difficulty in establishing primary liability, there may be issues relating to apportionment, and the likelihood is that the new agents, or the insurers, would require to carry out some investigation into the soundness of the original claim, and the value thereof, which might give rise to difficulties with quantification."
A joint minute had recorded the existence of mental health problems, and a medical report spoke to the effect of the ongoing legal proceedings. There was therefore evidence from which the Lord Ordinary was entitled to reach the conclusion which he did on this aspect.
Lady Dorrian concluded: "On the remaining issue of the balancing exercise, we again cannot accept the submission that the Lord Ordinary erred in the weight he attributed to the individual factors. He gave due attention to all the relevant factors. He recognised in terms that the respondents had a claim for professional negligence which “would be very likely to succeed.” He recognised that the reclaimers would suffer prejudice from the loss of the statutory protection, but he was entitled to take into account that this was the only prejudice which would be encountered by the reclaimers. He was entitled to take account of the fact that this was only one of the factors which he required to consider, as was the availability of the alternative claim. What the Lord Ordinary required to do was make an assessment of all the relevant factors, and in our view this is what he did."