Legal Method: Case of Personal Injury and Time Barred Action

This article discusses a case of personal injury and the legal dispute surrounding a time-barred action. It explores the arguments made by the pursuer and the defender, the judge's reasoning, and the legislative provisions involved. The case highlights the importance of adhering to time limitations in legal proceedings.

Legal Method

Table of Contents
Relevant fact of the case........................................................................................................................2
A legal dispute that the Lord Ordinary had to resolve...........................................................................2
Arguments made by the pursuer and the defender.................................................................................3
Case law utilised by the pursuer and the defender in their arguments...................................................4
Judge’s reasoning that ultimately led her to resolve the case.................................................................4
Legislative provision.............................................................................................................................5
References.............................................................................................................................................7
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Relevant fact of the case
This is a case of personal injury which was pursued by the passenger seated behind the first
defender on a motorbike. The first defender tried to overtake a Toyota MR2 motorcar which
was being driven by the third defender on the Main Street, Castletown, and the third defender
took a right turn. The pursuer had various injuries in the accident between the motorcar and
the motorbike. The solicitor of the first defender suggested him to claim damages jointly or
separately from the defenders (Journal Online, 2018). The issue which was being faced by the
court whether the current action should be allowed to proceed according to the section 19A of
the Prescription and Limitation Act 1973. The accident commenced more than three years 6
July 2014 and the current action was time-barred under section 17 of the 1973 Act. Lady
Clark mentioned on the facts and situation of the present case that there was a clear case
against the solicitor of the pursuer as the negligence of the professionalism. The solicitor had
a number of opportunities and strategies to deal with the problem as the importance of time
bar provision were well recognised. The summon was being failed due to postal service the
solicitor could have asked the court officer to send the summons to the third defender at that
point of time itself (Kemp, 2018). And even the solicitor did not look for taking permission
from the court to extend the 3 months' time for sending the summons to call the third
defender as he had not served on them yet. This case was unusual, it is not because the first
summon had been received by the first and second defender within the triennium but the
defenders have been sent to the pursuers before the triennium had expired. The reason was
the technicality that the formal service was not affected and also the technicality which was
related to the problem of the service on the third defender as he was not able to receive
summon due to the postal issue, there was no problem with the first and second defender.
A legal dispute that the Lord Ordinary had to resolve
This case is about a pursuer who had been a passenger on a motorbike which met with an
accident and got injured on 6th of July 2014. His solicitor advised him to file a case in court in
order to get a claim for the damages both separately and jointly from the three different
defenders who were responsible for the incident. For that, each of the defenders must have to
summon served on them individually (Demick, 2018). First, the second and fourth defender
did not face any problem in serving to summon but the third defender failed in two different
occasions due to the postal issue. As the third defender did not receive summon, the action
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was also not being served on those third defenders by the deadline for the case needs to be
submitted in the court for presenting the defenders which need to take place within three
months from the day the summons is being signed at the court. The pursuer's solicitor wanted
to submit the summons at that point of time and it was getting rejected by the General
Department of the Court of Session (Bell-Rehwoldt, 2005). However, three years later of the
personal injury action has been raised the revised summons has been sent successfully again
to the first and second first second and fourth defenders. As because of the previous issue the
solicitor requested court officer to serve the summons to the third defenders and it was
submitted successfully this time. The solicitor of the pursuer was dependent on the provision
of section 19A of the Prescription and Limitation (Scotland) Act 1973 which may force the
court for allowing the case to continue from where it has been stared.
Arguments made by the pursuer and the defender
After the successful submission of the second summons to all four defenders, the third and
fourth defenders have resolved the issue out of the court itself but the first and second
decided to stay with the claim that was the time-barred and pursuer should not be allowed to
continue with the case. The solicitor of the pursuer was dependent on the provision of section
19A of the Prescription and Limitation (Scotland) Act 1973 which may force the court for
allowing the case to continue from where it has been stared (Evans, 2018). The solicitor of
pursuer argued that it was fair enough for allowing to the proceeding as the first summons
had been received by the first and second defenders on time and had in fact announced
defences. It was also argued by the solicitor that was only a technical issue that the summons
had not been submitted to the third defender as there was some postal issue and this not
related to the first and second defenders. The liability has been admitted by the third and
fourth defenders and damages have also been paid for the remedy. It was being noticed by the
Lady Clark that the 1973 Act provides the court with broad circumspection in the context of
the specific reality and situation of the individual case (Foulis, 2018). It was being reviewed
by her that it is necessary for the identification of the statutory scheme placed in the 1973 Act
which provides major protection to the defenders. Lady Clark noticed that the first and
second defenders seem to have engaged with the action and stick with the rules and
procedures. If they won't be able to defend themselves using statutory time bar provisions,
they might go for "significant prejudice". The judge cannot go in favour of the pursuer as it
may encourage other late claims. It was being considered by the Lady Clark that the Solicitor
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of the pursuer should bare the claims of the incident and was stated that there was a very
strong prima facie case for the negligence of the professionalism (Jolowicz, 1964). When the
summons was not getting served to the third defender due to the postal issue, the pursuer's
solicitor might have requested to the court officer to serve the summons on his behalf as he
did the second time. He did not do it the first time because of the additional cost associated
with it. When the pursuer's solicitor wanted to submit the summons at that point of time and
it was getting rejected by the General Department of the Court of Session, he did not ask for
the permission to extend the three months of time so that the summons can be submitted for
calling the defenders which had not served till then.
Case law utilised by the pursuer and the defender in their arguments
The solicitor of pursuer failed to extend the time period for publishing the summons due to
the oversight. On the third defender, the time period was being applied because it had not
been previously attempted due to the cost and summons for calling was lodged. The second
and first defenders required dismissal because of the time bar. It was argued for the pursuer
under section 19 A of the Prescription and Limitation (Scotland) Act 1973 that action need to
have proceeded because the defenders had obtained their summons within the period of time.
They had also sent their defences within the time period (Kirton and Madunic, 2009). The
technical factor led to the failure of the formal services but it did not concern the following
defenders. The interim damages were also been depicted that it had been paid and the
liability had also been admitted. Seeking remedy against the solicitors will cause further
issues of quantification and delays and special processes for the reparation actions will not be
available.
The summons was lodged when the limitation period was being fast approaching against all
the defenders. The summons was not being accepted for calling by the general department.
An action was taken under section 19A against the defenders by the solicitor (Legislation,
2018). The interim damages were being paid by the defenders but the liability was being
admitted. It was observed by the judge that there were many actions which would have been
taken within the time period by the solicitors of the pursuer to overcome the time bar
problem.
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Judge’s reasoning that ultimately led her to resolve the case
In the court session, a procedural hearing was carried out in which the arguments of the
parties were heard. The solicitors of the pursuer depended on the terms and conditions under
section 19A of Prescription and Limitation (Scotland) Act 1973. The court can exercise
discretion under the provisions in which the actions can be taken by the judge if the personal
injury case is started after a three year time period (McCartney, 2018). The decision can be
taken as per the circumstances. It was being argued that action to proceed should be allowed
because the first summons was being received on time by the second and first defenders and
they also defended. The formal service was not carried out for the third defender due to the
technicality which also did not concern the second and first defenders.
Lady Clark observed that section 19A of Prescription and Limitation (Scotland) Act 1973
provides the court to exercise discretion on the basis of the particular circumstances and facts
of the case. It was considered by her that it is crucial to determine and evaluate the statutory
scheme which is being prescribed under the 1973 Act as it provides protection to the
defenders. The second and first defenders were being observed by her that they had been
engaged with the actions and followed the rules and regulations (Scot Courts, 2018). The
judge considered that the injustice to the defenders will outweigh injustice to the pursuer. The
availability of the remedy was also being considered by Lady Clark for the pursuer. A
professional negligence was also being observed by the judge. Lady Clark stated that there
were many actions within the time period that would have been taken by the solicitors of the
pursuer to solve the problem of the time bar. The judge observed that the solicitor of the
pursuer or their insurers would have taken the pragmatic approaches. It was also stated by her
that she did not consider the case because pursuer would not receive a remedy (Scottish
Government, 2012).
The discretion was not being used by Lady Clark and she dismissed the claim. The reasoning
of the judge was focused on the significance of enacting particular limitations for providing
protections to the wrongdoers when the defenders had complied and engaged fully with the
regulations and rules. The limitation rule of Scotland also provides protection to the
defenders. Thus, the judge looked into facts and circumstances associated with the case while
exercising the discretion (Shaw, 2003).
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Legislative provision
Lady Clark did not use discretion as per the facts and situations associated with the case. She
noticed a professional negligence as she expected the solicitors of the pursuer to adopt a
pragmatic approach. The case was not carried out because there were many opportunities or
actions that would have been taken by the solicitors of the pursuer to deal with the problem of
the time bar. The main focus of the judge was to protect the defenders because they fully
complied and engaged within the legal rules and procedures (Scottish News, 2018). The
judges should use the discretion as per the facts, rule and circumstances associated with the
case. The judges should not misuse their power and they can learn from the decision taken by
Lady Clark.
The limitation is considered to be very much essential in the procedural rule. The effect of the
limitation is to restrict the proceeding of the actions in the court after the completion of the
time period within which the law need that it should be brought (Walker, 2015). For bringing
the actions for the personal injury damages are being monitored by section 18 and 17 of the
Prescription and Limitation (Scotland) Act 1973. The defender can raise a defence for the
time bar and the court would not allow proceeding the action. The judge of the court has the
right to make decisions on the basis of the evidence and laws associated with the case.
Lady Clark observed that the section 19A of Prescription and Limitation (Scotland) Act 1973
provides a wide discretion to the court on the basis of the situations and facts associated with
the case. However, the judge also recognized that under section 1973 Act a statutory scheme
provides protection to the defenders. It is being determined and evaluated that Lady Clerk
was very much fair in her decision while examining the case (Tomkins, 2016). She had
evaluated each and every aspect of the legal rules and regulations before carrying out the
case. She did not misuse her power and applied the law in an appropriate manner. All the
judges should learn from the case carried out by Lady Clark. The court has the discretion
power but it is very much important to determine that the limitation rule and regulation of
Scotland provides protections to the defenders. Therefore, the court should look at the
situations during exercising the discretion in each of the cases. However, the time-barred
cases should not proceed by not considering in full whether it is being equitable to carry out.
It is important to keep in mind that the pre-action negotiations are carried out by taking into
account its limitations.
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References
Bell-Rehwoldt, S. (2005). Law. 3rd ed. Detroit: Lucent Books.
Demick, P. (2018). Scottish court takes strong line on limitation - Kennedys. [online]
Kennedyslaw.com. Available at: https://www.kennedyslaw.com/thought-leadership/case-
review/scottish-court-takes-strong-line-on-limitation [Accessed 16 Dec. 2018].
Evans, M. (2018). International law. 10th ed. Oxford: Oxford University Press.
Foulis, L. (2018). End of the road: The Journal Online. [online] Journalonline.co.uk.
Available at: http://www.journalonline.co.uk/Magazine/63-11/1026526.aspx [Accessed 16
Dec. 2018].
Jolowicz, J. (1964). Limitation Act, 1963. The Cambridge Law Journal, 22(01), p.47.
Journal Online (2018). Time bar upheld where solicitors failed to deal with service issues:
The Journal Online. [online] Journalonline.co.uk. Available at:
http://www.journalonline.co.uk/News/1026358.aspx#.XBaYfYszbIV [Accessed 16 Dec.
2018].
Kemp, M. (2018). Mike Kemp: Time is of the essence. [online] Scottish Legal News.
Available at: https://www.scottishlegal.com/article/mike-kemp-time-isn-t-the-main-thing
[Accessed 16 Dec. 2018].
Kirton, J. and Madunic, J. (2009). Global law. 8th ed. Farnham: Ashgate.
Legislation (2018). Prescription and Limitation (Scotland) Act 1973. [online]
Legislation.gov.uk. Available at: https://www.legislation.gov.uk/ukpga/1973/52 [Accessed
16 Dec. 2018].
McCartney, N. (2018). The dangers of serving court actions close to the time bar | Anderson
Strathern Solicitors | Edinburgh & Glasgow. [online] Anderson Strathern. Available at:
https://andersonstrathern.co.uk/news-insight/the-dangers-of-serving-court-actions-close-to-
the-time-bar/ [Accessed 16 Dec. 2018].
Scot Courts (2018). OUTER HOUSE, COURT OF SESSION. [online] Scotcourts.gov.uk.
Available at: https://www.scotcourts.gov.uk/docs/default-source/cos-general-docs/pdf-docs-
for-opinions/2018csoh95.pdf?sfvrsn=0 [Accessed 16 Dec. 2018].
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Scottish Government (2012). Civil Law of Damages: Issues in Personal Injury - A
Consultation Paper. [online] Www2.gov.scot. Available at:
https://www2.gov.scot/Publications/2012/12/5980/5 [Accessed 16 Dec. 2018].
Scottish News (2018). Time-barred damages claim dismissed due to solicitors’ problems with
service of summons. [online] Scottish Legal News. Available at:
https://www.scottishlegal.com/article/time-barred-damages-claim-dismissed-due-to-
solicitors-problems-with-service-of-summons-1 [Accessed 16 Dec. 2018].
Shaw, M. (2003). International law. 2nd ed. Cambridge, U.K.: Cambridge University Press.
Tomkins, A. (2016). Alan Page, Constitutional Law of Scotland. Edinburgh Law Review,
20(2), pp.253-254.
Walker, N. (2015). Intimations of global law. 7th ed. Cambridge: Cambridge University
Press.
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