This is a case of personal injury which was pursued by the passenger seated behind the first defender on a motorbike. The first defender tried to overtake a Toyota MR2 motorcar which was being driven by the third defender on the Main Street, Castletown, and the third defender took a right turn. The pursuer had various injuries in the accident between the motorcar and the motorbike. The solicitor of the first defender suggested him to claim damages jointly or separately from the defenders (Journal Online, 2018). The issue which was being faced by the court whether the current action should be allowed to proceed according to the section 19A of the Prescription and Limitation Act 1973. The accident commenced more than three years 6 July 2014 and the current action was time-barred under section 17 of the 1973 Act. Lady Clark mentioned on the facts and situation of the present case that there was a clear case against the solicitor of the pursuer as the negligence of the professionalism. The solicitor had a number of opportunities and strategies to deal with the problem as the importance of time bar provision were well recognised. The summon was being failed due to postal service the solicitor could have asked the court officer to send the summons to the third defender at that point of time itself (Kemp, 2018). And even the solicitor did not look for taking permission from the court to extend the 3 months’ time for sending the summons to call the third defender as he had not served on them yet. This case was unusual, it is not because the first summon had been received by the first and second defender within the triennium but the defenders have been sent to the pursuers before the triennium had expired. The reason was the technicality that the formal service was not affected and also the technicality which was related to the problem of the service on the third defender as he was not able to receive summon due to the postal issue, there was no problem with the first and second defender.
This case is about a pursuer who had been a passenger on a motorbike which met with an accident and got injured on 6th of July 2014. His solicitor advised him to file a case in court in order to get a claim for the damages both separately and jointly from the three different defenders who were responsible for the incident. For that, each of the defenders must have to summon served on them individually (Demick, 2018). First, the second and fourth defender did not face any problem in serving to summon but the third defender failed in two different occasions due to the postal issue. As the third defender did not receive summon, the action was also not being served on those third defenders by the deadline for the case needs to be submitted in the court for presenting the defenders which need to take place within three months from the day the summons is being signed at the court. The pursuer’s solicitor wanted to submit the summons at that point of time and it was getting rejected by the General Department of the Court of Session (Bell-Rehwoldt, 2005). However, three years later of the personal injury action has been raised the revised summons has been sent successfully again to the first and second first second and fourth defenders. As because of the previous issue the solicitor requested court officer to serve the summons to the third defenders and it was submitted successfully this time. The solicitor of the pursuer was dependent on the provision of section 19A of the Prescription and Limitation (Scotland) Act 1973 which may force the court for allowing the case to continue from where it has been stared.
After the successful submission of the second summons to all four defenders, the third and fourth defenders have resolved the issue out of the court itself but the first and second decided to stay with the claim that was the time-barred and pursuer should not be allowed to continue with the case. The solicitor of the pursuer was dependent on the provision of section 19A of the Prescription and Limitation (Scotland) Act 1973 which may force the court for allowing the case to continue from where it has been stared (Evans, 2018). The solicitor of pursuer argued that it was fair enough for allowing to the proceeding as the first summons had been received by the first and second defenders on time and had in fact announced defences. It was also argued by the solicitor that was only a technical issue that the summons had not been submitted to the third defender as there was some postal issue and this not related to the first and second defenders. The liability has been admitted by the third and fourth defenders and damages have also been paid for the remedy. It was being noticed by the Lady Clark that the 1973 Act provides the court with broad circumspection in the context of the specific reality and situation of the individual case (Foulis, 2018). It was being reviewed by her that it is necessary for the identification of the statutory scheme placed in the 1973 Act which provides major protection to the defenders. Lady Clark noticed that the first and second defenders seem to have engaged with the action and stick with the rules and procedures. If they won’t be able to defend themselves using statutory time bar provisions, they might go for “significant prejudice”. The judge cannot go in favour of the pursuer as it may encourage other late claims. It was being considered by the Lady Clark that the Solicitor of the pursuer should bare the claims of the incident and was stated that there was a very strong prima facie case for the negligence of the professionalism (Jolowicz, 1964). When the summons was not getting served to the third defender due to the postal issue, the pursuer’s solicitor might have requested to the court officer to serve the summons on his behalf as he did the second time. He did not do it the first time because of the additional cost associated with it. When the pursuer’s solicitor wanted to submit the summons at that point of time and it was getting rejected by the General Department of the Court of Session, he did not ask for the permission to extend the three months of time so that the summons can be submitted for calling the defenders which had not served till then.
The solicitor of pursuer failed to extend the time period for publishing the summons due to the oversight. On the third defender, the time period was being applied because it had not been previously attempted due to the cost and summons for calling was lodged. The second and first defenders required dismissal because of the time bar. It was argued for the pursuer under section 19 A of the Prescription and Limitation (Scotland) Act 1973 that action need to have proceeded because the defenders had obtained their summons within the period of time. They had also sent their defences within the time period (Kirton and Madunic, 2009). The technical factor led to the failure of the formal services but it did not concern the following defenders. The interim damages were also been depicted that it had been paid and the liability had also been admitted. Seeking remedy against the solicitors will cause further issues of quantification and delays and special processes for the reparation actions will not be available.
The summons was lodged when the limitation period was being fast approaching against all the defenders. The summons was not being accepted for calling by the general department. An action was taken under section 19A against the defenders by the solicitor (Legislation, 2018). The interim damages were being paid by the defenders but the liability was being admitted. It was observed by the judge that there were many actions which would have been taken within the time period by the solicitors of the pursuer to overcome the time bar problem.
In the court session, a procedural hearing was carried out in which the arguments of the parties were heard. The solicitors of the pursuer depended on the terms and conditions under section 19A of Prescription and Limitation (Scotland) Act 1973. The court can exercise discretion under the provisions in which the actions can be taken by the judge if the personal injury case is started after a three year time period (McCartney, 2018). The decision can be taken as per the circumstances. It was being argued that action to proceed should be allowed because the first summons was being received on time by the second and first defenders and they also defended. The formal service was not carried out for the third defender due to the technicality which also did not concern the second and first defenders.
Lady Clark observed that section 19A of Prescription and Limitation (Scotland) Act 1973 provides the court to exercise discretion on the basis of the particular circumstances and facts of the case. It was considered by her that it is crucial to determine and evaluate the statutory scheme which is being prescribed under the 1973 Act as it provides protection to the defenders. The second and first defenders were being observed by her that they had been engaged with the actions and followed the rules and regulations (Scot Courts, 2018). The judge considered that the injustice to the defenders will outweigh injustice to the pursuer. The availability of the remedy was also being considered by Lady Clark for the pursuer. A professional negligence was also being observed by the judge. Lady Clark stated that there were many actions within the time period that would have been taken by the solicitors of the pursuer to solve the problem of the time bar. The judge observed that the solicitor of the pursuer or their insurers would have taken the pragmatic approaches. It was also stated by her that she did not consider the case because pursuer would not receive a remedy (Scottish Government, 2012).
The discretion was not being used by Lady Clark and she dismissed the claim. The reasoning of the judge was focused on the significance of enacting particular limitations for providing protections to the wrongdoers when the defenders had complied and engaged fully with the regulations and rules. The limitation rule of Scotland also provides protection to the defenders. Thus, the judge looked into facts and circumstances associated with the case while exercising the discretion (Shaw, 2003).
Lady Clark did not use discretion as per the facts and situations associated with the case. She noticed a professional negligence as she expected the solicitors of the pursuer to adopt a pragmatic approach. The case was not carried out because there were many opportunities or actions that would have been taken by the solicitors of the pursuer to deal with the problem of the time bar. The main focus of the judge was to protect the defenders because they fully complied and engaged within the legal rules and procedures (Scottish News, 2018). The judges should use the discretion as per the facts, rule and circumstances associated with the case. The judges should not misuse their power and they can learn from the decision taken by Lady Clark.
The limitation is considered to be very much essential in the procedural rule. The effect of the limitation is to restrict the proceeding of the actions in the court after the completion of the time period within which the law need that it should be brought (Walker, 2015). For bringing the actions for the personal injury damages are being monitored by section 18 and 17 of the Prescription and Limitation (Scotland) Act 1973. The defender can raise a defence for the time bar and the court would not allow proceeding the action. The judge of the court has the right to make decisions on the basis of the evidence and laws associated with the case.
Lady Clark observed that the section 19A of Prescription and Limitation (Scotland) Act 1973 provides a wide discretion to the court on the basis of the situations and facts associated with the case. However, the judge also recognized that under section 1973 Act a statutory scheme provides protection to the defenders. It is being determined and evaluated that Lady Clerk was very much fair in her decision while examining the case (Tomkins, 2016). She had evaluated each and every aspect of the legal rules and regulations before carrying out the case. She did not misuse her power and applied the law in an appropriate manner. All the judges should learn from the case carried out by Lady Clark. The court has the discretion power but it is very much important to determine that the limitation rule and regulation of Scotland provides protections to the defenders. Therefore, the court should look at the situations during exercising the discretion in each of the cases. However, the time-barred cases should not proceed by not considering in full whether it is being equitable to carry out. It is important to keep in mind that the pre-action negotiations are carried out by taking into account its limitations.
References
Bell-Rehwoldt, S. (2005). Law. 3rd ed. Detroit: Lucent Books.
Demick, P. (2018). Scottish court takes strong line on limitation – Kennedys. [online] Kennedyslaw.com. Available at: https://www.kennedyslaw.com/thought-leadership/case-review/scottish-court-takes-strong-line-on-limitation [Accessed 16 Dec. 2018].
Evans, M. (2018). International law. 10th ed. Oxford: Oxford University Press.
Foulis, L. (2018). End of the road: The Journal Online. [online] Journalonline.co.uk. Available at: https://www.journalonline.co.uk/Magazine/63-11/1026526.aspx [Accessed 16 Dec. 2018].
Jolowicz, J. (1964). Limitation Act, 1963. The Cambridge Law Journal, 22(01), p.47.
Journal Online (2018). Time bar upheld where solicitors failed to deal with service issues: The Journal Online. [online] Journalonline.co.uk. Available at: https://www.journalonline.co.uk/News/1026358.aspx#.XBaYfYszbIV [Accessed 16 Dec. 2018].
Kemp, M. (2018). Mike Kemp: Time is of the essence. [online] Scottish Legal News. Available at: https://www.scottishlegal.com/article/mike-kemp-time-isn-t-the-main-thing [Accessed 16 Dec. 2018].
Kirton, J. and Madunic, J. (2009). Global law. 8th ed. Farnham: Ashgate.
Legislation (2018). Prescription and Limitation (Scotland) Act 1973. [online] Legislation.gov.uk. Available at: https://www.legislation.gov.uk/ukpga/1973/52 [Accessed 16 Dec. 2018].
McCartney, N. (2018). The dangers of serving court actions close to the time bar | Anderson Strathern Solicitors | Edinburgh & Glasgow. [online] Anderson Strathern. Available at: https://andersonstrathern.co.uk/news-insight/the-dangers-of-serving-court-actions-close-to-the-time-bar/ [Accessed 16 Dec. 2018].
Scot Courts (2018). OUTER HOUSE, COURT OF SESSION. [online] Scotcourts.gov.uk. Available at: https://www.scotcourts.gov.uk/docs/default-source/cos-general-docs/pdf-docs-for-opinions/2018csoh95.pdf?sfvrsn=0 [Accessed 16 Dec. 2018].
Scottish Government (2012). Civil Law of Damages: Issues in Personal Injury – A Consultation Paper. [online] Www2.gov.scot. Available at: https://www2.gov.scot/Publications/2012/12/5980/5 [Accessed 16 Dec. 2018].
Scottish News (2018). Time-barred damages claim dismissed due to solicitors’ problems with service of summons. [online] Scottish Legal News. Available at: https://www.scottishlegal.com/article/time-barred-damages-claim-dismissed-due-to-solicitors-problems-with-service-of-summons-1 [Accessed 16 Dec. 2018].
Shaw, M. (2003). International law. 2nd ed. Cambridge, U.K.: Cambridge University Press.
Tomkins, A. (2016). Alan Page, Constitutional Law of Scotland. Edinburgh Law Review, 20(2), pp.253-254.
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