The Prescription and Limitation (Scotland) Act 1973 sets out the period within which someone must raise court proceedings for compensation relevant to an injury they have personally suffered or in relation to the death of a relative.
The general rule set out in sections 17 and 18 of the Act is that no action can be brought unless it is commenced within three years of the date on which: (a) the injury was sustained; (b) the individual became aware, or in the opinion of the court it would have been reasonably practicable for him in all the circumstances to become aware, that an injury was sustained which could be attributable to the act or omission of another person in whole or in part; or (c) the relative's date of death.
Where a person would be entitled but for these provisions to bring an action the court may, if it seems to it equitable to do so, allow an action to be brought notwithstanding that it is out of time as set out in section 19A of the Act.
We were instructed by Andrew Pollock of Peacock Johnston, Solicitors, based in Glasgow, to act as Edinburgh Agent for the Pursuers in the case of Betty Ferguson and Others against J & A Lawson (Joiners) Limited.
This was a claim made by the relatives of the late Kenneth Ferguson who died in August 2006 of right lung mesothelioma. As the action in question was not raised until May 2012 the Defenders sought to have the case dismissed on the basis that the claim was time-barred.
Clearly it could not be disputed that the action was not raised within three years of the date of death. However, the Pursuers sought to rely on section 19A of the Act to allow the case to be brought outwith the limitation period on the ground that it would be equitable to do so.
The pursuers' former solicitors had raised an action within the three year period against J&A Lawson Limited but failed to include the word "(Joiners)" in the name of the Defenders. In effect, they sued the wrong company. However, the Pursuers themselves were blameless and they contended that the error in question was, in any event, a minor one.
It was also argued that the alternative remedy open to the Pursuers of a professional negligence action against their former solicitors would not be without its own problems. There would be minimal prejudice for the correct Defenders who would ultimately find themselves in exactly the same position they would have been had the correct company been sued in the first instance.
The case proceeded to a Preliminary Proof on time-bar in May 2013 before Lord Uist. His opinion issued in August found the solicitors who had acted on behalf of the pursuers at the relevant time had exercised all due diligence in their endeavour to trace the company's insurers (who would be able to satisfy any decree obtained). Furthermore, Lord Uist added that the solicitors could not have been criticised had they advised the Pursuer that there was no point in going to the expense of raising an action to obtain a worthless decree (when it was thought at the time there was no insurer to pay compensation).
Lord Uist considered that the error in the first action resulting in the second action being necessary had not in any way caused unfairness to the insurers of the Defenders. Lord Uist felt that in fact the situation that had developed, arguably placed the Defender in a better position. This is because following insurance cover being discovered it was not necessary for the Defender to reduce the decree obtained but simply to defend the current action.
Lord Uist, therefore, concluded that it would be unjust to refuse to allow the action to proceed and that, as it would be equitable to do, so Lord Uist allowed the Pursuers to proceed with their court action outwith the three-year time-bar period.
The Defenders are appealing this decision by Lord Uist and it is anticipated that the appeal will be heard during the course of 2014.