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 Principal allowed it and on appeal the Second Division reversed the decision of the Sheriff Principal.
Held: A pursuer in such circumstances has to accept responsibility for the sins of omission or commission of his solicitor as ‘the correct exposition of the law’. since the pursuer was legally aided, the defenders would probably have to pay their own expenses, win or lose, whereas if the pursuer were refused the indulgence which he sought the defenders would not be placed in that position, was a relevant consideration: ‘In every case of this nature there is a common theme. If the pursuer is granted the court’s indulgence the defender loses a cast iron case, since but for that he would be legally free from the claim, and he is faced with the risk of losing the case with the consequential financial repercussions. That is a factor to be taken into account. He has no way out of that. On the other hand, if the pursuer is not granted the court’s indulgence his claim against the defender comes to an end, and the defender is freed and relieved of a claim which might have been a perfectly justifiable one. However, the pursuer might have, as here, an action against his solicitors for professional negligence which might or might not recoup him in whole or in part for the damages which he could no longer obtain from the defender. There are imponderables about such an alternative, and its outcome can vary from case to case. Neither of these contrasting considerations is in itself conclusive, and the weights to be applied to them respectively will again depend on the circumstances. In my opinion it is not illegitimate to have in consideration the strength of the case against the third party and the likelihood of a successful prosecution of such a case, but again that is just a factor. Another consideration (although the Sheriff Principal rejected it – wrongly in my view), even if it only carries a little weight, is the burden of the expenses the defenders have to bear even if they are successful, since the pursuer is a legally assisted person. This in a way is merely consequential on the major issue, but it is entitled to be taken into account for what it is worth.’
Lord Justice Clerk Wheatley
1985 SLT 51
Approved – Donald v Rutherford IHCS 1984
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 . .
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.
Updated: 05 July 2022; Ref: scu.200279