Scottish Court of Session Decisions

[1] In this Optional Procedure action the defenders have moved the Court to allow the pleadings to be amended in terms of a Minute of Amendment and Answers (Nos. 10 and 12 of Process), both as adjusted. This motion is opposed.

[2] The background circumstances, as disclosed in the debate before me, are remarkable and reflect little credit on the legal profession.

[3] The action in question is an action for damages in respect of personal injuries sustained in a road accident involving a number of vehicles which occurred on 7 March 1991. The pursuer's claim was intimated to the defenders on 3 June 1993. By letter of 8 February 1994 (No. 18/7 of Process), being only one month prior to the expiry of the triennium, the defenders' insurers wrote to the pursuer's solicitors saying, inter alia,

The present action was thereafter signetted and served on 3 March 1994. The solicitors now acting for the defenders were first instructed on 11 March 1994 and Defences, which reflected the "concession" referred to above, were lodged on 18 May 1994. The action was then sisted on the defenders' motion on 2 June 1994. Quite remarkably the action then remained sisted for no less that 6 1/2 years at the end of which the sist was recalled on the defenders' motion in December 2000. On 22 February 2001 proof was allowed and the proof diet is fixed for 26 February 2002.

[4] The Minute of Amendment in question now seeks to withdraw the "concession" about a collision between the defenders' vehicle and the pursuer's vehicle but it is fair to say that the Minute also contains detailed averments to the effect that in the course of negotiations the pursuer's agents were made aware of the defenders' change of front as long ago as "late 1995". In that situation Mr Wylie, for the defenders, submitted that it would be wholly unrealistic for the Court now to hold the defenders to an admission of fact which had been withdrawn or, at least, purportedly withdrawn over six years ago. I have much sympathy with that submission.

[5] On the other hand, Mr Milligan, for the defenders, relied on what he saw as a highly prejudicial aspect of matters, namely the effect of the "concession" in question during the one month period prior to the expiry of the triennium. According to Mr Milligan it was probable but for that "concession" his client would have sued another party or parties and/or intimated a potential claim to the Motor Insurers Bureau. Although there is here clearly an element of speculation involved, I again have much sympathy with that submission.

[6] In the case of Gordon v East Kilbride Development Corporation, 1995 SLT 62, Lord Caplan resolved a situation somewhat similar to the present by allowing a proof before answer in relation to the possible application of the principle of Personal Bar. Mr Milligan did not invoke that principle in the present case and in my view he was right not to do so in the absence of any contractual setting in which it could be applied. Although Lord Caplan appears to have thought the principle capable of independent application it is right to record that neither counsel felt able to support that approach. There is, however, an alternative approach which was canvassed during the debate before me, namely the possibility that any prejudice suffered by the pursuer as a result of what was, in effect, a misrepresentation by the defenders' insurers might, as matter of principle, have been dealt with - and might conceivably still be dealt with - by way of an action of damages. I did not understand either counsel to dispute that possibility.

[7] If, of course, an action of damages were indeed the proper method whereby any prejudice could, or should, have been dealt with, then clearly much of the force of Mr Milligan's opposition to the present motion flies off. While, however, I do not think that I am in a position conclusively to resolve that matter, I do think it relevant that the pursuer's advisors appear not even to have thought of other possible remedies and chose instead to do nothing for the very lengthy period to which I have referred. To seek now to hold the defenders to an admission of fact which was purportedly withdrawn some six years ago is, I consider, quite unreasonable. In any event, I am satisfied that in order to focus anything like the true matter in dispute between the parties, this Minute of Amendment must be allowed. I accordingly grant the defenders' motion.