Scottish Court of Session Decisions

"The Lords, having heard Counsel for the parties, the case having called By Order, and on the motion of the pursuer made at the Bar, there being no opposition thereto in respect that parties are agreed (1) that the time bar plea contained in each of the answers hereinafter referred to will in due course be remitted to the Outer House, and (2) that counsel for the first named defenders will in the course of the Summar Roll diet set down for 17 February 2004 and the three following days make no submissions on behalf of the additional first defenders referred to in the Minute of Amendment hereinafter referred to, allow the Closed Record to be opened up and amended in terms of the Minute of Amendment and Answers, Nos. 36, 41 and 42 of process, all as adjusted, and this having been done, of new closes the Record...."

"Further, our reports contain many decisions showing that the Court will not in general allow a pursuer by amendment to substitute the right defender for the wrong defender, or to cure a radical incompetence in his action, or to change the basis of his case if he seeks to make such amendments only after the expiry of a time limit which would have prevented him at that stage from raising proceedings afresh."

That is what the pursuer seeks to do in the present action - unlike Pompa's Trustees, he is not merely seeking to substitute the correct representatives for the wrong ones, but to introduce liability against 16 new individuals. This was not an example of correcting the defenders' designation, as was the subject of consideration in the reclaiming motion by the Gray Aitken Partnership & Others (unreported) [2006] CSIH 4. If one looked at the original pleadings in the present action there was no question that the pleader intended to blame the 16 individuals added by the Minute of Amendment for their individual fault. This was therefore a clear example of a pursuer seeking to introduce new defenders outwith the triennium, contrary to the provisions of section 17(2) of the Prescription and Limitation (Scotland) Act 1973.

(a) No attempt was made to bring the new 16 individuals into this action until almost seven years after the accident, and there was no explanation for this delay. This factor weighed heavily against the pursuer.

(b) There was nothing in the pleadings to explain the delay.

(c) With regard to the effect that the passage of time has had on the defenders' ability to defend the action and generally on the availability and quality of evidence, 13 years had already passed since the accident. It was likely that at least one further year would elapse until a proof. This will inevitably impact on the recollections of what was said at meetings, particularly with regard to individuals who appeared to have had no (or little) involvement.

(d) With regard to the conduct of the pursuer and in particular how expeditious he was in seeking legal or other expert advice and intimating a claim for damages to the defenders, there was nothing by way of explanation or justification in the pleadings, either with regard to the period between the accident in February 1995 and service of the summons in February 1998, or with regard to the period between February 1998 and service of the Minute of Amendment in about January 2002.

(e) There was nothing to suggest that any legal or other advice may have contributed to the delay.

(f) There was nothing in the pleadings to suggest that any of the defenders (whether the original five or the new 16) had contributed to the delay by their bad conduct.

(g) As already indicated, the pursuer clearly has an alternative remedy against the existing five individual defenders. Moreover, although he avers that he has no remedy against his legal advisers, he does not aver why this is so. Counsel accepted that it was open to the pursuer to supplement his averments by ex parte statements at the bar. Finally, with regard to any other relevant matter, the strength (or otherwise) of the pursuer's claim against the new 16 defenders was a relevant factor. It was clear from the Opinion of the First Division that the pursuer's case based on occupiers liability was doomed to failure. The case against the new defenders must be weaker (or in any event could not be stronger) than the case against the existing five defenders, and this was particularly so for those individuals who only became members of the committee in 1995. It was impossible to conceive of circumstances whereby the new defenders might be liable but the original five named individuals were not liable.

".... by suing the 'West of Scotland Kart Club' the pursuer is in effect suing himself. While it is permitted to use a descriptive club name in the instance of a writ (see Renton FC v McDowall, Bridge v South Portland Street Synagogue, and the Sheriff Court Ordinary Cause Rules), to do so is no more than a useful procedural device or shorthand method of referring to everyone who was a member of the club at the relevant time".

It follows that service of the original summons on the club amounted to service on all the individual members, including the "new" 16 defenders. Service of the summons therefore interrupted the running of the limitation period against these defenders. In answer to a question from the court as to whether one could interrupt the running of time by a misconceived writ, senior counsel replied that only if the writ was radically incompetent or a nullity would it not interrupt the limitation period. The pursuer could therefore raise an action against any of the members of the club at any time after dismissal of his action against the club itself, because limitation was distinct from prescription, and one only needed to raise an action in order to stop the running of the limitation period.

With regard to (a) and (b), while it was correct that almost seven years elapsed between the accident and service of the Minute of Amendment, this was a complex case which involved the solicitors in much work obtaining expert reports, and it was difficult to establish who were the correct defenders. Two commissions were held, in January and September 2001, to recover club documentation with a view to ascertaining who should be identified in the Minute of Amendment.

(c) As already indicated, it cannot be argued that the "new" defenders have suffered prejudice as a result of the passage of time, because they share the same solicitors and counsel as the originally named five individuals.

(d) No criticism can be made of the pursuer's conduct.

(e) and (f) These are not relevant in this case.

(g) With regard to other remedies which the pursuer may have, this case was unusual. The pursuer does not have an alternative remedy. The Minute of Amendment is merely an elaboration of an existing remedy. When asked if he wished to expand or add to the averment at the end of Article 6 of Condescendence that "the pursuer has no alternative remedy against his legal advisers", Senior counsel declined to do so.

"The effect of such procedure is nevertheless to convene the club or association as a whole, albeit any decree obtained can only be enforced directly against the named representatives".