A Court of Session judge has refused to allow a personal injuries action to proceed when it was raised after the three year time bar due to a series of procedural difficulties.
Lady Clark of Calton considered that there was "a very strong prima facie case of professional negilgence by the pursuer's solicitors", Slater & Gordon, due to decisions made after problems arose regarding service of the action.
The case was brought by Kriss Spencer, a pillion passenger injured in a motorbike accident on 6 July 2014. He sued the driver of the motorbike, Richard Cruddas, along with (second) his insurers, (third) the driver of a car that turned right as the motorbike was overtaking it, and (fourth) that driver's insurers.
Discussions had been taking place with the insurers since about April 2015. The fourth defenders indicated that the claim would be dealt with by the second defenders although liability remained in dispute. The second defenders made an interim payment in April 2016. There were problems about valuation of damages. A summons was signeted on 16 June 2017; service was accepted by the second defenders' solicitors on behalf of the first two defenders. A postal citation was sent to the other defenders but service on the third defender failed, as did a second attempt at postal service. The Court of Session General Department would not allow the summons to be lodged for calling without service on the third defender.
Due to oversight the pursuer's solicitors failed to lodge a motion to extend the period for lodging the summons for calling, and the instance fell ion 19 September. A further summons was signeted on 20 September. This time service was effected on the third defender by messenger at arms (it was said this had not been attempted previously due to the cost), and the summons was lodged for calling. The first and second defenders sought dismissal due to time bar.
For the pursuer it was argued that it was equitable to allow the action to proceed under s 19A of the Prescription and Limitation (Scotland) Act 1973, as those defenders had received the first summons within the time allowed and had sent their defences; the failure was due to a technicality which did not concern those defenders; interim damages had been paid; liability had now been admitted; and to have to seek a remedy against his solicitors would cause delay and problems of quantification, and the special procedure for reparaton actions would not be available.
The second defenders (an Danish company) were now in bankruptcy but the claim could be transferred to other companies to administer. They had waived their right to repayment of interim payments.
Lady Clark recognised that "of particular importance" was the early history of engagement about the claim; the payment of interim damages; the timeous service of the summons on the first and second defenders; their ability to draft defences; and the fact that liability was now admitted.
However she continued: "When I considered the availability of a remedy for the pursuer against his solicitors, I was persuaded that there is a very strong prima facie case of professional negligence. It is not clear what any defence might be to such a claim and none was suggested which would avoid all liability... Even if [a challenge to the approach of the General Departmenr] was well founded, I am of the opinion that the decision making by the pursuer’s solicitors about the mode and timing of service and the clear problems which had arisen had nothing to do with any decision by the General Department. I considered that there were a number of actions over a period which the pursuer’s solicitors could have taken to avert the time bar problem."
After noting the "active engagement" on behalf of the first and second defenders she stated: "I accepted that in practice there may be some delay and uncertainty for the pursuer if he requires to pursue an alternate remedy but in a case such as this I do not regard that as serious prejudice. I am not persuaded that the assessment of damages in relation to the pursuer could be a difficult exercise even taking into account the bankruptcy of the second defenders and any arrangements consequent thereon. Liability in relation to the accident is admitted. In this case, I would expect the pursuer’s solicitors or their insurers to take a pragmatic approach. It is not a case in which I anticipate that the pursuer would lack a remedy or have that remedy long delayed."
It did not tip the balance that liability would fall on the wrongdoer who had caused the accident, as the limitation provisions had been enacted to give protection to wrongdoers for policy reasons. "The first and second defenders appear to have engaged with the action and complied with the rules of procedure and will suffer significant prejudice if they lose the protection of the statutory time bar provisions. I consider the prejudice to the defenders would outweigh the prejudice to the pursuer in this case."
The action was dismissed.