A v Glasgow City Council - claims processed despite being raised out of time

Outer House, Court of Session [2018] CSOH 116

Introduction

The Court of Session has exercised its discretion under s.19A of the Prescription and Limitation (Scotland) Act 1973 (“the Act”) to allow the pursuers’ claims to proceed despite them being raised out of time.

The facts

On 22 December 2014 a refuse lorry being driven by one of the defender’s employees collided with pedestrians in Glasgow, fatally injuring six people. The families of the deceased (“the pursuers”) sought reparation from the defenders. Unfortunately the first action was not served in time. A second action was brought outside of the limitation period as prescribed by the Act. The pursuers applied for the court to exercise its discretion under s.19A of the Act to allow their action to proceed.

Arguments

The pursuers argued that the only prejudice to the defenders was the loss of the time bar defence. The claim had already been fully investigated by the defenders so they would not be met with new allegations and, in any event, liability had been conceded. If the pursuers’ claims could not proceed then they would need to bring new proceedings against their solicitor which would cause further upset and be detrimental to the pursuers’ mental health. The defenders’ submitted that the statutory protection of the time bar defence was in place for the defenders’ benefit and they were permitted to take advantage of such a defence. The defenders’ argued that the critical issue was whether the pursuers would have a good alternative remedy against their solicitors. In light of the pursuers’ solicitor’s negligence, they were likely to have a cast iron case against her. It was unfortunate that there may well be some delay in the pursuers obtaining compensation from their solicitor but the interests of justice would not be served by the court exercising its discretion in the pursuers’ favour.

Judgment

The court accepted that the pursuers’ claims were time barred. It was also accepted that the court could avail itself of s.19A of the Act and exercise its discretion to permit the continuation of the pursuers’ claims. The unfettered discretion of the court was to do what is equitable in all the circumstances. The jurisdiction of the court is based upon equity and therefore the court had to consider where the equities lay. Accepting that the case had been fully investigated, liability was not in dispute and the pursuers’ solicitor had in the main acted in an exemplary way, the court held that the balance of equities fell in favour of the pursuers and exercised its discretion under s.19A of the Act.

Comment

Even though the court found that the failure on the part of the pursuers’ solicitors was serious and culpable, and any professional negligence action against the pursuers’ solicitors would be very likely to succeed, discretion was exercised in favor of the pursuers.

The main reason for the pursuers’ success is that the court has a wide discretion when considering applications made for s.19A discretion to proceed and the court must balance where the equities lay.

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