Whether it was equitable to allow an action to go ahead despite the expiry of the limitation period, depended upon three factors: ‘(1) 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 explanation for his not having brought the action timeously; (2) any likely prejudice to the pursuer if authority to bring the action out of time were not granted; and (3) any likely prejudice to the other party from granting authority to bring the action out of time’. Each case must depend upon its own facts. The court allowed the pursuer to convene the third party as a defender out of time as the pursuer had provided a reasonable explanation for his failure to direct the action against the third party timeously and he could have been prejudiced had he not been allowed to bring the action against the third party as he would have had no other remedy. There was minimal prejudice to the third party, who was already in the process and under the necessity of investigating the accident.
The power conferred by the section should be exercised sparingly and with restraint.
Judges:
Lord Ross
Citations:
1981 SC 278
Cited by:
Applied – Whyte v Walker 1983
The pursuer was injured in a road traffic accident on 8 July 1976 and raised an action on 19 June 1981 alleging that his original solicitors wrote to the defender on two occasions in 1977 claiming damages and that the defender had written on 5 . .
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 . .
Cited – Bowden v Poor Sisters of Nazareth and others and similar HL 21-May-2008
The appellants said they had suffered abuse while resident at children’s homes run by the respondents. The respondents denied the allegations and said that they were also out of time. The claims were brought many years after the events.
Held: . .
Lists of cited by and citing cases may be incomplete.
Scotland, Limitation
Updated: 13 May 2022; Ref: scu.200277