Scottish Court of Session Decisions

"By amendment of his pleadings, the pursuer admits that his parents were aware of the possibility of dyslexia prior to 15^th February, 1995. The pursuer admits that he was made aware of the diagnosis of motor dyslexia on 17^th November 1996. He further admits that an action was not raised until 4 years and 9 and a half months later. Esto the action in respect of the Teachers is time-barred (as the pursuer admits) the action which the pursuer now seeks to make against the Learning Support Staff is also time-barred. The pursuer avers that he consulted his solicitors, Messrs HBM Sayers about his claim in August 1997. He avers that HBM Sayers withdrew from acting in August 2000 by which time the action was already time-barred. The pursuer has a cast iron case against HBM Sayers for failing to raise a Protective Writ within the triennium. Esto the pursuer was not rich enough to raise the action on a private basis (which is not known and not admitted), the Summons could have been drafted on a speculative basis at virtually no cost to him. The pursuer is called upon to aver the date upon which the Application for Legal Aid was submitted and the date upon which the Application was refused. His failure to answer this call will be founded upon. The pursuer is called upon to aver why he felt obliged to obtain a second Report in 2000 upon which to base his action when he was already in possession of the 1996 Report from Ms McGregor. His failure to answer this call will be founded upon. In any event, the defenders are prejudiced by the fact that since the pursuer is legally aided it is probable that the defenders will require to meet a large part of their own expenses, whether they successfully defend the action or not. The pursuer avers that Dr Boyle produced a Final Report on 23^rd November 2000 which provided the basis for litigation to be considered against the defenders. The pursuer is called upon to aver why it was that Mrs Cotter, aware in 2000 that the action was already time-barred, took over 2 months to obtain the Final Report from Dr Boyle and took a further 3 months to draft a Memorial for the Opinion of Counsel. The pursuer is called upon to aver why it was that in those circumstances, when the action was long since time-barred, a full year passed between obtaining Dr Boyle's Report and raising the action. In these circumstances, there has been unreasonable delay in raising proceedings. In said circumstances, the pursuer's agents are his alter ego and any delay by them in the progress of the action is the pursuer's ultimate responsibility. There would be no prejudice to the pursuer if the Court refused to exercise the discretion conferred upon it by section 19A. In any event, it is likely that the case would not come to Proof for at least another year after any Procedure Roll hearing. The action would concern events which took place over a period between seven and nineteen years previously. The pursuer has averred that he has sustained loss, injury and damage as a result of the acts and omissions of twenty one named Teachers. The whereabouts of all said Teachers is not clear. The memories of such witnesses as the defenders will be able to trace will inevitably have been materially diminished by the passage of time. Their recollection is unlikely now to be accurate in relation to an action concerning one child amongst hundreds of children who have passed through their classrooms. The defenders will be prejudiced by a Proof taking place in such circumstances at a time likely to be about 8 or 9 years from the date upon which a diagnosis was first made by Ms McGregor."

"In my opinion however it does not follow that because at some stage within the triennium a pursuer has taken a reasonable course of action which results in a failure to raise an action timeously, that it must be considered equitable to allow him to proceed with an action after the expiry of the three year limitation period. ... No doubt the reasonableness of the pursuer's actings will have a bearing on the equities, but for the latter to be properly considered by the court circumstances beyond those averred by the pursuer in this case are required".

"In the present case it would appear clear enough that no personal blame can properly be laid on the shoulders of the respondent himself, but he is answerable for the acts of his agents. Their failure to serve the 'protective writ' was the cause of the failure to proceed within the triennium, and their responsibility to the respondent for that failure and consequent liability in damages would, at least so far as pleadings and admitted correspondence disclose, appear to be beyond dispute."

"I regard the fact that no blame can be attached to the pursuer for his solicitors' failure to raise his action timeously as cancelled out by the fact that neither the defender nor his insurance company contributed in any way to that failure. The sole fault for that failure was that of the pursuer's solicitors who, for this purpose, are his alter ego."

"In every case of this nature there is a common theme. If the pursuer is granted the court's indulgence the defender loses a cast iron case, since but for that he would be legally free from the claim, and he is faced with the risk of losing the case with the consequential financial repercussions. That is a factor to be taken into account. He has no way out of that. On the other hand, if the pursuer is not granted the court's indulgence his claim against the defender comes to an end, and the defender is freed and relieved of a claim which might have been a perfectly justifiable one. However, the pursuer might have, as here, an action against his solicitors for professional negligence which might or might not recoup him in whole or in part for the damages which he could no longer obtain from the defender. There are imponderables about such an alternative, and its outcome can vary from case to case. Neither of these contrasting considerations is in itself conclusive, and the weights to be applied to them respectively will again depend on the circumstances. In my opinion it is not illegitimate to have in consideration the strength of the case against the third party and the likelihood of a successful prosecution of such a case, but again that is just a factor. Another consideration (although the Sheriff Principal rejected it - wrongly in my view), even if it only carries a little weight, is the burden of the expenses the defenders have to bear even if they are successful, since the pursuer is a legally assisted person. This in a way is merely consequential on the major issue, but it is entitled to be taken into account for what it is worth."

"...the pursuer, although he may have been personally blameless, is answerable for the acts of his agents. Putting the matter very broadly, the responsibility for the late raising of the present action rests firmly on the shoulders of the pursuer's former solicitors, for whose acts the pursuer is answerable."

"The discretion which is to be exercised under section 19A(1) has been said to be unfettered, and it is necessary to balance all the circumstances of the case and also the interests of all parties concerned ... It is for the pursuer to satisfy us that it would be equitable to allow him to proceed with his action ..."

"The onus being on the pursuer to satisfy the court that the terms of section 19A(1) should be applied, the court must first determine whether the pursuer's case in relation to the application of that section is relevant. If the case is relevant, the court must consider whether or not there is sufficient agreement between the parties on the material facts for it to decide upon the applicability of the section. If there is not, then ... the court should allow a preliminary proof on these facts. If, on the other hand, there is sufficient agreement on the material facts, then the court must proceed to adjudicate upon the application of section 19A(1). In our view, it should seldom be necessary for the court, in an action of damages for personal injuries involving only two parties, to allow a proof with all pleas standing, including those relating to the question of time bar and those relating to the merits of the action."

"The appellants contend that the section should be construed or applied not only strictly but, in the interest of public policy, restrictively. So far as construction is concerned, the words of the section are clear and unambiguous. It is impossible to construe the word 'equitable' narrowly or liberally. It is either equitable or inequitable to disapply the fixed time limit in any given set of circumstances, although different people may have different views of what is equitable in particular cases. The appellants argued that section 2D should be confined to 'exceptional cases'. That is precisely what the Act provides, since every case in which the court decides that the application of the norm would be inequitable is, ex hypothesi, an exceptional case".

"The onus of showing that in the particular circumstances of the case it would be equitable to make an exception lies upon the plaintiff; but, subject to that, the Court's discretion to make or refuse an order if it considers it equitable to do so is, in my view, unfettered. The conduct of the parties, as well as the prejudice one or other will suffer if the court does or does not make an order, are all to be put into the balance in order to see which way it falls."

"If it is clear on the pleadings that the pursuer cannot satisfy section 19A, the court can dismiss the action at procedure roll. The same will apply if the admissions in the pleadings extend far enough to make proof unnecessary. But where there is any doubt about the facts which bear on the exercise of the court's discretion, clearly the case cannot be decided on the pleadings alone. Here a preliminary proof on the question of limitation is likely to be appropriate."

"Does a teacher owe a common law duty of care to a pupil who is obviously having difficulty and not making the progress he should? Teachers are not educational psychologists, and they are not to be treated as though they were. But they, too, are professionals. It would make no sense to say that educational psychologists owe a duty of care to under-performing pupils they are asked to assess, but teachers owe no duty of care to under-performing pupils in their charge or about whom they give educational advice under the statutory scheme. In the same way as an educational psychologist owes a duty of care in respect of matters falling within the scope of his professional expertise, by parity of reasoning so must a teacher owe a duty of care to a child with learning difficulties in respect of matters which fall within his field of competence. A teacher must exercise due skill and care to respond appropriately to the manifest problems of such a child, including informing the head teacher or others about the child's problems and carrying out any instructions he is given. If he does not do so, he will be in breach of the duty he owes to the child, as well as being in breach of the duties he owes to his employer, and his employer will be vicariously liable accordingly."