A pedestrian was injured in a road traffic accident on 3 November 1975 but only raised an action on 13 February 1981. The failure to raise a timeous action was attributable to the fault of his former solicitors.
Held: He was allowed to proceed out of time as he had misdirected himself on a material matter of fact. The words ‘it seems equitable’ in section 19A(1) meant and could only mean that the discretion thereby conferred upon the court was unfettered: ‘In the present case it would appear clear enough that no personal blame can properly be laid on the shoulders of the respondent himself, but he is answerable for the acts of his agents. Their failure to serve the ‘protective writ’ was the cause of the failure to proceed within the triennium, and their responsibility to the respondent for that failure and consequent liability in damages would, at least so far as pleadings and admitted correspondence disclose, appear to be beyond dispute.’ Lord Dunpark: ‘I regard the fact that no blame can be attached to the pursuer for his solicitors’ failure to raise his action timeously as cancelled out by the fact that neither the defender nor his insurance company contributed in any way to that failure. The sole fault for that failure was that of the pursuer’s solicitors who, for this purpose, are his alter ego.’
Lord Cameron, Lord Dunpark
1984 SLT 70
Limitation Act 1980 19A(1)
Scotland
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 . .
Approved – Forsyth v A F Stoddard and Co Ltd OHCS 1985
An action for damages by an employee against his employer was raised 48 days after the expiry of the triennium due to an oversight by an assistant with the pursuer’s solicitors. The sheriff refused to allow the action to be brought, the Sheriff . .
Lists of cited by and citing cases may be incomplete.
Limitation
Updated: 01 November 2021; Ref: scu.200278