Intimating minute of amendment stops limitation running: appeal sheriffs

Additional pursuers had been brought into a reparation action within the limitation period when the minute of amendment was intimated within the triennium, even though the minute and motion to allow it to be received were lodged with the court the day after the triennium expired, the Sheriff Appeal Court has ruled.

Sheriff Principal Ian Abercrombie QC, Appeal Sheriffs Peter Braid and Andrew Cubie gave the decision in allowing a cross-appeal by members of the family of the late Donald Gillies in their action against Arjo Wiggins Ltd and Fairfield Rowan Ltd.

The deceased died on 29 May 2015. His widow raised the action in 2016. In April 2018 her agents proposed to extend the action by including connected relatives as pursuers. The relative motion and minute of amendment were intimated to the defenders on 25 May 2018. In accordance with the timetable in OCR, rule 15A they were then lodged with the court on 30 May. The defenders pled that the minute of amendment was time barred.

The sheriff upheld that plea but exercised his discretion in terms of s 19A of the Prescription and Limitation (Scotland) Act 1973 to allow the additional claims to be brought. The defenders appealed that decision and the pursuers cross-appealed.

On the limitation point the defenders argued that the claim had not been brought into the judicial process within the limitation period; the pursuers had to both intimate and lodge the minute of amendment prior to expiry of the period. Boyle v Glasgow Corporation (1975) indicated that unless and until it was lodged, an intimated minute of amendment was no different to a letter, and was not part of the judicial process.

Delivering the opinion of the court, Appeal Sheriff Cubie said the emphasis of the analysis in Boyle was on fair notice. The Lord Justice Clerk had stated: "When fair notice within the judicial process and within the prescriptive period has been given, I consider that the purposes and the provisions of [the legislation] have been effected."

Rule 15A had provided a new procedure with the lodging of the principal document after the motion procedure had concluded, either by agreement or by opposition. The pursuers complied with this. "We are satisfied that, such intimation having been made, the 'prerequisite of fair notice' has been satisfied", the court continued. "The lodging of the minute of amendment is, in this context, a red herring. The important part of the procedure is that which provides fair notice."

The cross-appeal succeeded and the issues in the appeal were rendered academic – though the court would otherwise have allowed the appeal on the basis that, absent averments about how the minute came to be lodged when it did, the sheriff was not in a position to exercise his discretion in terms of s 19A. A catch-all averment "in all the circumstances of the case" was "not necessarily apt to allow submissions to be made about the factual circumstances giving rise to any delay".

Click here to view the opinion of the court.