A female pursuer was involved in a road traffic accident caused by her boyfriend. She brought an action against him one year after the expiry of the triennium (which had begun to run when she reached the age of 18 in 1984). An action of damages which she had raised against her former solicitors for professional negligence had been sisted pending the outcome of the action against her boyfriend. The Temporary Lord Ordinary, on being moved to allow the action to be brought under section 19A, allowed a proof before answer, leaving all pleas standing.
Held: ‘The onus being on the pursuer to satisfy the court that the terms of section 19A(1) should be applied, the court must first determine whether the pursuer’s case in relation to the application of that section is relevant. If the case is relevant, the court must consider whether or not there is sufficient agreement between the parties on the material facts for it to decide upon the applicability of the section. If there is not, then … the court should allow a preliminary proof on these facts. If, on the other hand, there is sufficient agreement on the material facts, then the court must proceed to adjudicate upon the application of section 19A(1). In our view, it should seldom be necessary for the court, in an action of damages for personal injuries involving only two parties, to allow a proof with all pleas standing, including those relating to the question of time bar and those relating to the merits of the action.’
Judges:
Lord MacLean
Citations:
1994 SC 410
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, Equity
Updated: 30 April 2022; Ref: scu.200281
