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OUTER HOUSE, COURT OF SESSION
[2006] CSOH 163
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PD1796/04
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OPINION OF
LORD DRUMMOND YOUNG
in the cause
GRAHAM FLEMING
Pursuer;
against
DEREK KEILLER
Defender:
ญญญญญญญญญญญญญญญญญ________________
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Pursuer: McCall; Lefevre Litigation
Defender: L. Milligan; Balfour & Manson
17 October 2006
[1] The
pursuer has raised an action against the defender for damages for personal
injuries. The circumstances giving rise
to the claim are averred as follows. On 10 November 2001 the pursuer
was taking part in a pheasant shoot at Tilliefourie, near Inverurie. There were seven guns in the shoot. The participants were walking forward in a
straight line, in accordance with normal practice. They took their line from one Alex Alexander,
who was in the middle position of the seven.
Mr Alexander was working a dog.
The pursuer was about 30 metres to the right of Mr Alexander, and was on
slightly higher ground. The defender was
the gun immediately to the left of Mr Alexander. Suddenly and without warning the defender
shot low to his right hand side. His
shot hit the pursuer. As a result it is
said that the pursuer sustained loss, injury and damage. It is averred in particular that the defender
shot outwith his arc of fire, too close to the line of shooters and too
low. That is said to constitute fault at
common law.
[2] The
defender has averred that the action is time-barred. The accident complained of occurred on 10 November 2001, but the summons
did not pass the Signet until 11
November 2004. Consequently,
it is said, section 17 of the Prescription and Limitation (Scotland)
Act 1973 is applicable. In response to
the claim of time bar, the pursuer makes the following averments. It is admitted that the summons did not pass
the Signet until 11 November 2004,
under explanation that it was served on the defender by messengers-at-arms on 11 November 2004, one day after the
expiry of the triennium. It is further
admitted that the action is time-barred in terms of section 17 of the 1973
Act. The pursuer nevertheless relies on
section 19A of the same Act, which permits the court, if it seems equitable to
do so, to allow an action to be brought notwithstanding section 17.
[3] In
support of his case under section 19A, the pursuer makes the following
averments. The pursuer instructed
solicitors, Messrs Hutcheon Rattray & Co, of Aberdeen,
on 5 March 2002. On 20
June 2002 that firm intimated a claim to the defender. The defender instructed his own solicitors,
Messrs Blackadders, of Dundee, who entered into
correspondence with the pursuer's solicitors on the merits of the claim and
denied liability. On 14 July 2004 the pursuer's solicitors
instructed a note from counsel on the prospects of successfully pursuing an
action against the defender. Counsel
provided a note on 20 July 2004. On 21
September 2004 the pursuer's solicitors advised him that they did
not feel qualified to continue to act and advised him to consult a firm known
as Quantum Claims. The pursuer met with
a representative of the latter firm on 22
October 2004. On 25 October
2004 that person wrote to the defender advising that Quantum Claims had been
instructed and that they would be raising proceedings to protect the pursuer's
right of action given that the action would time bar on 10 November 2004. On 25
October 2004 the same individual attended at the offices of Lefevre
Litigation in Aberdeen with the
papers in the case and instructed a solicitor there to act in the matter. She telephoned the counsel previously
involved in the case and advised him that he would be instructed to draft a
summons. A letter of instruction was written
to counsel on the same day, 25 October
2004. Owing to an oversight
the individual solicitor in Lefevre Litigation did not enter the case into the
office diary and wall chart; the latter records the date of time bar of all
cases being dealt with by that solicitor.
Counsel's clerk acknowledged receipt of the letter of instruction by a
letter dated 26 October 2004. The letter of instruction was placed in
counsel's box. The counsel in question
did not attend at Parliament House until 11 November 2004.
He found the letter of instruction on that date and immediately drafted
a summons, which was sent to Lefevre Litigation's office in Edinburgh. It was served by messengers-at-arms on the
same day, 11 November 2004,
one day after expiry of the triennium.
[4] The
pursuer further avers that the defender has investigated the accident, and has
not been prejudiced by the action's being raised one day after expiry of the
triennium. The defender was not in
ignorance of the fact that a claim was made and that an action was to be raised
against him. The claim, it is said, is
not stale, and the delay will not pose problems for the defender in defending
the action. So far as the pursuer's
position is concerned, it is said that he will be prejudiced if he loses his
right of action against the defender.
Any action against his solicitors would not be straightforward; they
were instructed only 16 days prior to expiry of the triennium, their oversight
or omission was excusable, and they relied upon counsel. As soon as a summons was received from
counsel an action was raised. Raising an
action against the solicitors would inevitably cause delay and inconvenience
for the pursuer. He would require to
instruct further solicitors, consider against whom proceedings should be
directed and thereafter initiate proceedings.
The case against his solicitors and counsel would require
investigation. In addition, the
pursuer's counsel pointed out in her submissions that, in any action based on
professional negligence, the pursuer might not receive the support of Quantum
Claims. That might mean that he had to
fund proceedings out of his own resources.
[5] The
defender now challenges the relevancy of the pursuer's averments in support of
his case under section 19A, and their case called before me in the procedure
roll in order that that matter might be discussed. For the defender, it was submitted that on
the basis of the pursuer's averments summarized in the last paragraph the court
should inevitably refuse to exercise its discretion under section 19A in
favour of the pursuer; the result was that the action should be dismissed. Counsel accepted that under that section the
court required to weigh various factors, in particular the conduct of the
pursuer and his legal advisers and any likely prejudice to either party according
to whether or not leave was granted. She
submitted that the most important factor in the present case was that the
defender would lose an absolute defence to the pursuer's claim. By contrast, the pursuer's averments
indicated clear negligence on the part of his legal advisers, for which he
would have a right of action. The fact
that the delay was of only one day was not relevant; the action was still
outwith the statutory time limit. In
addition counsel placed reliance on the fact that the defender was uninsured
and could suffer severe financial consequences as a result of the pursuer's
claim. Counsel for the pursuer submitted
that the court should exercise its discretion in the pursuer's failure on the
basis of the averments that he had made.
Even if that were not possible, she submitted that the pursuer's
averments were not such that his case under section 19A must inevitably fail;
consequently a preliminary proof should be allowed on the application of
section 19A. Counsel relied particularly
on the fact that the action was only one day late; consequently the pursuer's
claim could not possibly be considered stale.
She further emphasized that the conduct of the pursuer was personally
blameless, and that there might be formidable difficulties in bringing an
action for professional negligence against his legal advisers. Any professional negligence claim must
inevitably be more complex than the personal injuries claim on which it is
based; in the present case a range of defenders might be involved, including
two sets of solicitors and counsel. In
addition, an action based on professional negligence would not benefit from the
new simplified personal injuries procedure.
Moreover the pursuer had the financial backing of Quantum Claims, and
that might be withdrawn if an action were raised against the pursuer's
solicitors.
[6] Section
19A confers a discretion on the court. That discretion must be exercised according to
equitable principles: nevertheless, it is clear that a number of specific
issues are relevant to its exercise.
Those that seem relevant to the present case are as follows. In the first place, the court must have
regard to "the conduct of the pursuer since the accident and up to the
time of his seeking the court's authority to bring the action out of time,
including any explanations for his not having brought the action
timeously": Carson v
Howard Doris Ltd 1981 SLT 273, per Lord Ross at 275. In this connection, the pursuer is answerable
for the acts of his agents, and any failure on the part of his legal advisers
will normally be held against him: Donald
v Rutherford 1984 SLT 70, per Lord Cameron at 77; Forsyth v A.F. Stoddard & Co Ltd 1985 SLT 51, per LJC Wheatley at
54. Consequently the negligence of the
pursuer's legal advisers will not normally of itself be a sufficient reason for
exercising the power of extension in section 19A: Morrice v Martin Retail Group
Ltd 2003 SCLR 289.
[7] In
the second place, it has been said that the court must consider the likely
prejudice to the pursuer if authority to bring the action out of time is not
granted, and likely prejudice to the defender if authority is granted: Carson, supra.
I think that this proposition requires somewhat closer examination. The prejudice to the pursuer will normally be
the loss of his right of action against the defender. The prejudice to the defender will normally
be that he loses what is otherwise an unanswerable defence. In many cases the pursuer may appear to have
a good right of action against his professional advisers based on their
negligence; in that event the prejudice to the pursuer may be minimal, although
an action against professional advisers will nearly always present greater
complication than a straightforward action against the original defender. In cases where there is no apparent right of
action against professional advisers, however, the prejudice to the pursuer and
the prejudice to the defender are, in a sense, equal and opposite. In that event, it is necessary in my opinion
to bear in mind the fundamental nature of a limitation statute. This is very clearly explained by McHugh J.
in a decision of the High Court of Australia, Brisbane South Regional Health Authority v Taylor [1996] 186 CLR 541; McHugh J's opinion that case contains
perhaps the most comprehensive and most helpful analysis of the law of
limitation that is available. After
considering the rationales of limitation statutes (a matter that I return
to at paragraph [11] below), McHugh J states (at 553):
"In
enacting limitation periods, legislatures have regard to all these rationales. A limitation period should not be seen
therefore as an arbitrary cut-off point unrelated to the demands of justice or
the general welfare of society. It
represents the legislature's judgment that the welfare of society is best served
by causes of action being litigated within the limitation period,
notwithstanding that the enactment of that period may often result in a good
cause of action being defeated. Against
this background, I do not see any warrant for treating provisions that provide
for an extension of time for commencing an action as having a standing equal to
or greater than those provisions that enact limitation periods. A limitation provision is the general rule;
an extension provision is the exception to it.
The extension provision is a legislative recognition that general
conceptions of what justice requires in particular categories of cases may
sometimes be overridden by the facts of an individual case.... But whether
injustice has occurred must be evaluated by reference to the rationales of the
limitation period that has barred the action.
The discretion to extend should therefore be seen as requiring the
applicant to show that his or her case is a justifiable exception to the rule
that the welfare of the State is best served by the limitation period in
question. Accordingly, when an applicant
seeks an extension of time to commence an action after a limitation period has
expired, he or she has the positive burden of demonstrating that the justice of
the case requires that extension".
Two important points emerge from
the foregoing analysis of the law.
First, the onus is on the pursuer of establishing that the limitation
period should be extended. Secondly, following
on from that first point, if the prejudice to the parties is equal and
opposite, and the pursuer does not have a good excuse for his failure to raise
proceedings timeously, the defender's rights under the limitation statute must
normally prevail. This approach is in my
opinion supported by the opinion of Lord Nimmo Smith in Cowan v Toffolo Jackson & Co Ltd 1998 SLT 1000, where he points out
(at 1003) that the pursuer must aver more than the consequences alone, however
serious for him, of the operation of section 17; the pursuer must, in his
pleadings, provide the court with a basis upon which the court's discretion
could properly be exercised in his favour.
I respectfully agree with those views.
[8] In
the third place, the fact that a pursuer who fails to raise an action within
the triennium has an alternative ground of action against his legal advisers is
regarded as relevant to the existence of prejudice. That appears from Donald v Rutherford, supra, and also from Anderson v
Glasgow District Council 1987 SC 11.
In the latter case, LJC Ross pointed out (at 25) that, in order to take
into account the existence of a claim against legal advisers, it was not
necessary to hold that the pursuer was almost certain to succeed in such an
action.
[9] In
the fourth place, even a very short delay beyond the triennium is sufficient to
cut off the pursuer's right of action: Forsyth,
supra, at 1985 SLT 54 (a delay of 48 days); Wilson v Telling (Northern)
Ltd 1996 SLT 380 (a delay of three days, although exacerbated by further
delay thereafter). Nevertheless the
length of delay that has occurred may clearly be relevant to the exercise of
the court's discretion. If the delay is
long, the risk that evidence will be lost and that the general quality of
justice will suffer is clearly much greater.
If, by contrast, the delay is short, the defender is unlikely to be able
to argue that he has suffered any prejudice through loss of evidence, and it is
unlikely that there will be any serious deterioration in the quality of
justice.
[10] In the fifth place, I am of opinion that the existence or otherwise
of insurance is irrelevant to the exercise of the court's discretion. An insurer is entitled to assert all rights
and defences that are open to the insured; that is a fundamental principle that
underlies the law and practice of insurance.
Consequently the insurer is entitled to invoke any relevant period of
limitation. Conversely, the absence of
insurance should not be regarded as a reason for stricter adherence to the
basic limitation provision. I note that
in Leith v
Grampian University Hospital NHS Trust [2005] CSOH 20, Lord Brodie
reached the same conclusion at paragraph [14].
Counsel for the defender suggested that the existence or otherwise of
insurance was a material factor in the exercise of the discretion under section
19A; she relied on certain remarks by Lord Robertson in Forsyth v A.F. Stoddard & Co Ltd at 1985 SLT 58. In that passage Lord Robertson referred to
the prejudice to "the defenders and their insurers" as a material
consideration. I do not understand that passage
to support counsel's submission; it rather seems to me that Lord Robertson was
merely equiparating the insurers and the insured, and thus affirming that the
insurer is entitled to all the rights and defences open to the insured.
[11] In the sixth place, the rationales that underlie the enactment
of limitation periods may be relevant.
The standard rationales are set out by McHugh J in Brisbane South Regional Health Authority v Taylor
at 186 CLR 551-553. These are as
follows. First, delay has an impact on
the quality of justice. One
manifestation of this is that, as time passes, relevant evidence is likely to
be lost, and frequently it is not even realized that the evidence ever
existed. Another manifestation is that,
when evidence is led of events that occurred years previously, it becomes
increasingly difficult for a court to assess those events properly. Secondly, it is oppressive to a defender to
allow an action to be brought long after the circumstances that gave rise to it
have passed. Thirdly, people should be
able to arrange their affairs and utilize their resources on the basis that
claims can no longer be made against them.
Fourthly, the public interest requires that disputes should be settled
as quickly as possible.
[12] In the present case the pursuer avers, in essence, that he
instructed his original solicitors in March 2002, less than six months after
the accident. More than two years later,
in July 2004, the advice of counsel was taken.
Two months after that, the original solicitors advised that they were
not qualified to pursue an action and advised the pursuer to consult Quantum
Claims. I must say that I find the delay
in giving that advice quite extraordinary.
Nevertheless, Quantum Claims were instructed on 22 October 2004, and they passed the
instructions on to Lefevre Litigation on 25 October, 15 clear days before
the expiry of the triennium. That ought
to have been long enough to draft a summons, since the facts were simple and
the identity of the defender was clear.
The solicitor in Lefevre Litigation who dealt with the case, however,
did not follow that firm's normal, and clearly sensible, practice of marking
the firm's office diary and wall chart.
Counsel was instructed, but he was absent from Parliament House until 11
November, the day after the triennium expired. There is no indication that any
reminder was sent to counsel or his clerk.
[13] In these circumstances the principle that a pursuer is
answerable for the acts of his legal advisers is plainly important. On his averments, it seems fairly clear that
the pursuer is not personally liable for the failure to institute proceedings
timeously. Nevertheless, he must be held
responsible for the failure of his legal advisers to do so. In these circumstances I cannot see that
there is any good reason advanced for the failure to raise proceedings within
the triennium. That is a factor that
must clearly be taken into account when the discretion under section 19A is
considered, for the reasons discussed at paragraph [6] above. The next matter that must be considered is
the prejudice suffered by each of the parties.
At worst for the pursuer, he stands to lose his claim against the
defender, but the defender stands to lose the defence that he would otherwise
have under section 17. In these
circumstances, in the absence of any good reason for the failure to raise
proceedings timeously, the policy that underlies the enactment of a limitation
period must be given effect, and the court must refuse leave under section 19A.
[14] Moreover, in the circumstances averred by the pursuer, it seems
likely that there is a good case in negligence against the solicitors who
ultimately acted for him. Counsel for
the pursuer submitted that any such claim would be complicated by the
intervention of earlier solicitors and the failure of counsel to discover the
instructions; consequently the pursuer would suffer prejudice if the present
action were not allowed to proceed. I
agree that the necessity of bringing an action based on professional
negligence, with the possibility that a number of different persons may have
been negligent, introduces an inevitable degree of complication. Nevertheless, the primary responsibility for
managing a claim rests with the solicitors who are instructed to do so, and the
fact that they may choose to bring other persons in as third parties does not
detract from their primary responsibility.
Consequently, so far as the pursuer is concerned, the additional complication
may not be all that great. In any event,
as indicated in Anderson v
Glasgow District Council, supra, there is no need to hold that the pursuer
is almost certain to succeed in a claim against his professional advisers for
the existence of such claim to be taken into account in the balancing exercise
under section 19A. In the present case,
the likelihood of success in an action against one or more of the pursuer's
professional advisers appears sufficiently great for the matter to be taken
into account. As such, it is a factor
that tends strongly against the exercise of the court's discretion under
section 19A. Counsel for the pursuer
drew attention to the greater difficulty of an action against professional
advisers, and also to the possible lack of the backing of Quantum Claims. I do not doubt that an action against
professional advisers will be in some respects more complex than the present
action would have been, and the loss of the backing of Quantum Claims may well
make it more difficult for the pursuer to proceed. Nevertheless, I do not think that these
factors outweigh the existence of what appears to be a reasonable claim for
professional negligence, and they certainly do not, either alone or taken with
other features of the case, tip the balance in favour of permitting the present
action to continue.
[15] Perhaps the most striking feature of the present case is the
fact that the action was raised one day after the expiry of the triennium. Such a short delay does mean that certain of
the standard rationales for the enactment of limitation periods do not apply to
the present case. It clearly cannot be
said that there is any serious impact on the quality of justice; the pursuer's
claim is not stale; it is unlikely that any relevant evidence will have been
lost, at least to a material degree; and it cannot be said that it is
oppressive to the defender to allow an action to be brought against him,
especially as a letter intimating the claim was sent during the triennium. Nevertheless, the two other rationales of
limitation statutes remain valid: the public interest requires that disputes
should be settled as quickly as possible, and people should be able to arrange
their affairs and to utilize their resources on the basis that after a certain
time they are free of claims. The
judgment of the legislature is that actions for personal injury should be begun
within a period of three years. If the
court is to grant an extension of that period, it is essential, as Lord Nimmo
Smith pointed out in Cowan v Toffolo Jackson Ltd, supra, that
affirmative grounds should be set forth for the granting of such an
extension. The mere fact that the delay
is very short is not enough, as the court has indicated in Forsyth v A.F. Stoddard &
Co Ltd, supra. The delay in raising
proceedings seems clearly to be the responsibility of the pursuer's legal
advisers, and the pursuer may well have a claim against them. In all the circumstances, I am of opinion
that no affirmative grounds have been set forth by the pursuer for the granting
of an extension under section 19A. In
those circumstances I must hold the pursuer's averments to be irrelevant. I will accordingly dismiss the action.
