An accident occurred on 16 April 1997 and the action was raised on 21 November 2000. The pursuer averred that it would be equitable in the circumstances to allow her to bring the action out of time. The action had not been raised within the triennium because the firm of claim handlers acting on behalf of the pursuer had mistakenly noted on their file that the date of the accident was 16 April 1998.
Held: In refusing the claim: ‘It appears to me that, in a case like the present, where there is an admitted culpable act of negligence by the pursuer’s representatives in not raising the action timeously, it is simply insufficient to aver the fact of that negligent act. Frequently where the power conferred by section 19A is prayed in aid by a pursuer, there has been an oversight or omission by those acting for him to raise the action timeously. The court’s discretionary power, conferred by section 19A, is to be exercised when it seems to the court that it is equitable to do so. Before the pursuer can succeed in persuading the court to exercise the power he must, in my judgment, set out appropriate facts and circumstances which point to it being equitable, notwithstanding the oversight or omission by those acting on his behalf, that the action should be allowed to proceed. Those facts and circumstances will include, no doubt among other things, the reason for the oversight or omission, how excusable the oversight or omission was, and the prejudice to the pursuer (including the extent of any such prejudice) if the action were not to proceed. It is clear from the authorities, cited by counsel for the defenders, that these factors have to be averred with some degree of specification (and if necessary proved). The section 19A power cannot, in my judgment, be regarded as simply providing an automatic release from the consequences of a pursuer’s representative’s negligence. In the present case, even after amendment, the pursuer’s pleadings, in my opinion, provide no basis which would justify the court being persuaded that, notwithstanding the oversight or omission in this case, it would be equitable for the pursuer to be allowed to bring her action. This is particularly so where it is accepted, as it was, that a refusal to exercise the section 19A power would involve no real prejudice to the pursuer.’
Judges:
Lord Clarke
Citations:
[2002] ScotCS 298, 2003 SCLR 289
Links:
Cited by:
Cited – David Lannigan v Glasgow City Council OHCS 12-Aug-2004
The pursuer said the teachers employed by the defendant had failed to identify that was dyslexic, leading him to suffer damage. The defenders said the claim was time barred, which the pursuer admitted, but then said that the claim ought to go ahead . .
Lists of cited by and citing cases may be incomplete.
Scotland, Limitation
Updated: 07 June 2022; Ref: scu.179397