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OUTER HOUSE, COURT OF SESSION
[2007] CSOH 115
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PD1606/06
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OPINION OF LORD EMSLIE
in the cause
MR BEN BROUWERS
Pursuer;
against
MR RAYMOND DAVID
TARTAGLIA
Defender:
ญญญญญญญญญญญญญญญญญ________________
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Pursuer:
Wilson; Simpson & Marwick
Defender: Henderson, solicitor advocate; Harper Macleod, LLP
6 July 2007
Introduction
[1] In
this action the pursuer, a Dutch national, seeks damages from the defender in
respect of a road accident which occurred on 4 September 2003.
In that accident the pursuer sustained leg injuries when his motor cycle
ran into the rear of the defender's car which was allegedly reversing round a
sharp bend on the A82 road between Tarbert and Crianlarich. His claim encompasses solatium for pain and suffering together with certain costs and
outlays.
[2] These
proceedings were originally raised against the wrong party on 31 August 2006, some four days
before the triennium expired. Instead of suing the defender as the driver
of the car, the pursuer sued the defender's wife, Mrs Joyce Tartaglia, who
owned the car and was travelling in it as a passenger when the accident
occurred. When defences were lodged at
the beginning of November 2006, the pursuer realised than an error had been
made, and an amendment to convene the correct defender was allowed by the court
on 19 December 2006.
[3] It
is accepted that in the foregoing circumstances the action as laid against the
present defender is time-barred by virtue of section 17 of the Prescription
& Limitation (Scotland)
Act 1973. Under section 19A of that
Act, however, the pursuer seeks leave of the court to bring that action out of
time, and the debate which I have now heard on the procedure roll concerned the
disputed issue as to whether or not section 19A could properly be operated
in the pursuer's favour. That section is
in inter alia the following terms:-
"(1) Where a person would be entitled, but for
any of the provisions of section.... 17 of this Act, to bring an action, the
court may, if it seems to it equitable to do so, allow him to bring the action
notwithstanding that provision."
The pleadings and supplementary information provided
[4] So
far as relevant for present purposes, the pursuer makes averments on the course
of correspondence between, on the one hand, his own agents and representatives
and, on the other, the insurers acting under the motor policy which was held by
Mrs Tartaglia as the owner of the car, and which inter alia covered the driving of that vehicle by the
defender. Initially a claim was
intimated on Mrs Tartaglia's behalf against
the pursuer in September 2003, and at that stage the correspondence correctly
identified her as the insured. In about
June 2004, however, the pursuer's personal injury claim was intimated to the
same insurers, and one of the oddities of this case is that throughout the
succeeding period until the action was raised Mrs Tartaglia's name
continued to appear in the heading of all correspondence. In their letter of 17 June 2004, the pursuer's agents asserted
that "your client" (ex facie Mrs Tartaglia)
"... appears to have been reversing in Mr Bouwers lane and thus causing
serious injuries and loss to our client".
On 14 July 2006,
a further letter from the pursuer's agents enclosed ".... a report and
photographs from.... our Investigation Specialist who has concluded that this
accident to our client was caused as a result of your insured's
negligence." That letter went on to
intimate awareness of the impending expiry of the triennium, and an intention to commence proceedings if a prompt
admission of liability was not forthcoming.
At no stage, however, did the insurers point out that it was the
defender, and not Mrs Tartaglia, who had been driving the car at the
material time. By telephone in the
course of August 2006, the insurers provided the pursuer's agents with the
Tartaglias' Edinburgh address, and
confirmed that in any event their solicitors had been instructed to accept
service of a summons in due course. The
insurers at that time also held out the prospect of agreement on the quantum of the pursuer's claim.
[5] At
page 9E of the Record, the pursuer further avers that in
September 2004 his representatives obtained an initial precognition from
the reporting police officer who attended at the scene of the accident, in
terms which... "referred to Mrs Tartaglia driving throughout", together with
a further precognition to the same effect from a lorry driver who was present
at the scene. I was informed, however, that
although this latter precognition mentioned a car "driven by
Mrs Tartaglia", asserting that "her car" was stationary, it went on to
describe ".... an old couple driving"!
[6] On
23 September 2004, the
pursuer's agents received from the insurers a further copy precognition from
the relevant police officer which "contained inconsistencies". As explained at the Bar during the debate,
this was a precognition obtained by the insurers themselves, and the
"inconsistencies" comprised two references to the defender having been the
driver of the car at the time of the accident and, in between, a sentence which
named Mrs Tartaglia as the driver.
In the absence of further averments on this aspect of the matter, I was
informed (a) that the pursuer's principal solicitor who received this
precognition would have read it on receipt, or at least within the next few
days, but (b) that owing to the passage of time it was not now possible to say
whether the "inconsistencies" were noticed at that time or not. It was also accepted before me that by the
time the insurers sent out the precognition in question, they must have had
possession of Mrs Tartaglia's initial claim form which presumably
identified the true driver at the time.
In addition, it was accepted that the insurers had by then held a copy
of the formal police report on the accident for some six months, and that that
report also correctly identified the defender as the male driver of the
vehicle.
The parties' submissions
[7] Against
that background, which both parties agreed was properly before the court for
the purposes of this debate, the point in dispute was ultimately quite a narrow
one. For the defender, it was contended
that no legitimate or reasonable explanation for the late service of
proceedings had been advanced, and that furthermore the potential prejudice on
either side from the grant or refusal of leave had simply not been
addressed. Accordingly, by reference to Carson v Howard
Doris 1981 SLT 273 and Bain v Philip (Lord Weir, unreported,
11 March 1992), there was no proper basis on which the court's equitable
discretion under section 19A could be exercised in the pursuer's
favour. The insurers' correspondence had
contained no factual misrepresentation;
the pursuer must bear responsibility for any errors by his precognition
agents; the pursuer's agents had clearly
failed to respond to the "inconsistencies" in the precognition submitted in
September 2004; they had admittedly
taken no steps to obtain the formal police report which would have clarified
the situation; and in all the
circumstances the pursuer and his own agents should be seen as the authors of
their own misfortune. Even if the
defender's insurers had apparently laboured under the same misapprehension
until after the action was raised, it was not their responsibility to identify
the correct defender to be sued.
Moreover, by reference to Munro
v Anderson-Grice 1983 SLT 295, the
pursuer appeared to have an alternative claim in negligence against his own
agents, or at least that possibility could not be excluded. By contrast, a decision in the pursuer's
favour would deprive the defender of the important protection which Parliament
had conferred upon him under section 17 of the 1973 Act. No point was, however, taken regarding any
further delay on the part of the pursuer's agents in the period after the triennium had expired. In other words, the defender's submissions on
section 19A concerned only the period up to 4 September 2006.
[8] In
reply, counsel for the pursuer submitted that in the circumstances there was
every reason why the court's equitable discretion should be exercised in his
client's favour. So far as the law was
concerned, the decision in Carson had subsequently been criticised as
reflecting too narrow a view of the issues to be considered, and in Bain the primary issue had concerned a
different section of the 1973 Act. Of
greater significance, in counsel's submission, were the decisions of the Inner
House in Donald v Rutherford 1984 SLT 70, Forsyth v A F Stoddard & Co Ltd 1985 SLT 51, and Clark v McLean 1994 SC 410. These confirmed inter alia that the court's discretion under section 19A was
unfettered, that there was no artificial limit on the range of factors which
could be taken into account, and that the court might proceed on ex parte submissions as well as
averments on Record.
[9] Against
that background, a reasonable excuse had been provided for the error in raising
proceedings against the wrong individual.
The pursuer himself was badly hurt and could not say who had been
driving the other vehicle. Initial
precognitions indicated that Mrs Tartaglia had been the driver, and this
appeared to square with the inclusion of her name in the heading of all
correspondence with the insurers between 2003 and 2006. Of particular significance was the fact that
when the pursuer's agents in 2004 and 2006 disclosed their understanding that
Mrs Tartaglia was the driver who should be sued, this met with no
correction or other response from the insurers.
Even more importantly, the insurers had positively contributed to the
misunderstanding in September 2004 when they sent their own precognition
containing "inconsistencies" to the pursuer's agents. Surprisingly, this step had been taken when
the insurers already had access to the correct information from the police
report, and presumably also from Mrs Tartaglia's initial claim form in
2003. If the insurers knew the true
position all along, but chose to keep quiet about it, their conduct would be
reprehensible. On the other hand, it
seemed more likely that they were labouring under the same misapprehension
themselves, and they could not therefore be too critical of the pursuer's
agents in that connection. Importantly,
the insurers could point to no actual prejudice in the situation which had
developed. Following intimation of the
claim in mid-2004, they had had every opportunity to investigate it before
proceedings were commenced, and they had been in a position to lodge full
defences to the initial summons in November 2006.
[10] Counsel therefore maintained that the court's discretion under
section 19A should be exercised in the pursuer's favour. Not only had the circumstances in which the
error came about been fully explained, but it was clear that, in substantial
measure, this error had been influenced by the conduct of the defender's
insurers. It would be inequitable to
allow the defender to take the benefit of a situation for which his own
insurers must bear some responsibility.
There were, moreover, other respects in which the equities favoured the
pursuer. Since the insurers could assert
no actual prejudice in the events which had occurred, refusal of the pursuer's
application would represent a "windfall benefit" to the defender. The pursuer, by contrast, would be deprived
of his right to recover damages from the party at fault; and moreover, it could not be said with any
certainty that he would have an alternative claim against his agents. Negligence on their part was not a foregone
conclusion, and in any event the pursuit of any such alternative claim would
involve significant trouble and expense bearing in mind that the pursuer lived
in Holland.
Discussion
[11] Although section 19A has often been said to confer on the court
an "unfettered" discretion (cf. Donald,
supra, per Lord Cameron at
page 75), it must nevertheless in my view be construed and applied with
the relevant primary limitation provision in mind. Parliament having envisaged that defenders
should be entitled to "close their books" on a potential claim after a certain
time, there must, I think, be a material onus
on a pursuer who seeks to invoke the court's equitable discretion to
override the statutory limitation. A
pursuer must therefore aver facts and circumstances sufficient to raise an
issue for determination under section 19A, after which it is for the court
(with or without a proof on disputed facts) to decide that issue in the
exercise of its equitable discretion.
Among the principal factors for consideration by the court in that
connection are (i) the circumstances in which the action was commenced out of
time, (ii) the conduct of the parties generally, (iii) the prejudice, if any,
liable to be sustained by the pursuer if the action were not allowed to
proceed, and (iv) the prejudice, if any, liable to be sustained by the defender
if the primary time-bar were to be overridden.
[12] Having reviewed the parties' pleadings and the other
information placed before me in the course of the debate, I have reached the
conclusion that the pursuer's application should, on equitable grounds, be
granted notwithstanding the fact that this action was not directed against the
correct defender until after the triennium
had expired. The principal factors which
lead me to that conclusion may be briefly summarised as follows:-
(i) In my view a reasonably full
explanation is available for the error which occurred, even though it may be a
little hard to understand how the triennium
expired without that error coming to light.
The pursuer's agents might perhaps have been expected to react to the
'inconsistencies' in the precognition which they received from the insurers in
September 2004, and they might also have been expected to consider obtaining a
copy of the formal police accident report which would have clarified the true
identity of the driver. If the pursuer's
agents had, by their own unaided efforts and without outside assistance,
contrived to sue the wrong defender in August 2006, I think that it might have
been difficult to justify the exercise of the court's equitable discretion in
their client's favour.
(ii) As it seems to me, however, the conduct
of the defender's insurers is an important factor in this case. From start to finish all of their
correspondence was headed with Mrs Tartaglia's name, even though the primary
subject-matter from mid-2004 onwards was the pursuer's personal injuries claim
against whoever was driving the car.
More importantly, perhaps, they sent out one of their own precognitions
to the pursuer's agents which contained 'inconsistencies', and in particular an
express reference to Mrs Tartaglia as the driver. This potentially confirmed the erroneous
impression created by precognitions which the pursuer's agents already held,
and might also have appeared consistent with the terms of all subsequent
correspondence. If the insurers had
known what they were doing all along, then obviously it would be inequitable to
allow them to take advantage of the pursuer's error. The probability is, of course, that the
insurers were labouring under the same misapprehension, but where their actings
must have reinforced the pursuer's agents' misunderstanding to some degree I
consider that the equities are still broadly in the pursuer's favour.
(iii) In addition, this is not a case in which
any real prejudice can be asserted on the defender's behalf. A claim was timeously intimated in June 2004,
and was subsequently investigated in full by the insurers before proceedings
were commenced. Moreover, since the
defender did not choose to take any point on the period of delay subsequent to
the expiry of the triennium, this
case can be treated as if the delay in convening the correct defender was very
short indeed.
(iv) A further factor is that while the
possibility of an alternative claim by the pursuer against his agents cannot on
present information be ruled out, I do not think that the success of such a
claim can be confidently predicted either.
In any event, the pursuit of such a claim would involve the pursuer, who
is a Dutch national, in considerable extra delay and expense.
Disposal
[13] It may be that some of the foregoing considerations would be
insufficient in themselves to justify a discretionary decision to allow the
pursuer's action against the present defender to proceed out of time. Cumulatively, however, it seems to me that
they tip the balance decisively in the pursuer's favour. I shall therefore grant the pursuer's
application for equitable relief under section 19A of the 1973 Act, and
correspondingly repel the defender's contrary contentions. Standing the measure of agreement between the
parties as to the relevant facts and circumstances, and their stated desire to
have this matter disposed of on the procedure roll, I have felt able to reach
this decision without having to consider the possibility of a preliminary proof
on some aspects which were perhaps a little less clear-cut than others.
