We set out the position regarding Personal Injury Time-Bar and in particular the applicability of Section 19A of the Prescription and Limitation (Scotland) Act 1973 back in November 2013 in light of the decision of Lord Uist in the case of Betty Ferguson and Others against J & A Lawson (Joiners) Limited.:
As highlighted at the end of our previous article, the Defenders were appealing the decision of Lord Uist. This appeal took place in June this year in front of three judges in the Inner House of the Court of Session in Edinburgh.
The Defenders were seeking to appeal on the basis that Lord Uist was wrong to take into account and placed excessive weight on several points including: (1) the fact the Defenders were insured; (2) that solicitors instructed at the time were acting on a no win no fee basis; and (3) that the Defenders are now in a better position than would have been the case had decree in absence been taken against the correct defenders in the first action.
The Defenders also considered that Lord Uist placed insufficient weight on the errors by solicitors previously instructed as well as the prejudice that would be suffered by the Defenders if the court action was allowed to proceed.
The Pursuers asked the Inner House to refuse the appeal on the basis the Defenders had not established that Lord Uist was "plainly wrong" or had made an error in law when exercising his discretion.
The three judges of the Inner House issued their opinion on 15 October 2014. The Inner House agreed with the position of the Pursuers and decided that they were not persuaded the high test - that Lord Uist was "plainly wrong" - had been met by the Defenders during the appeal hearing.
The Inner House added that the criticism of Lord Uist for referring to insurance was not justified because such observations were in the context of considering whether a reasonable explanation had been provided for the delay that had occurred. In terms of the no win/no fee arrangement the Inner House considered that this had only been mentioned in passing by Lord Uist. Finally, Lord Uist's position that the Defenders were now in a better position was a view Lord Uist was entitled to hold because, following insurance cover being discovered, it was not necessary for the Defenders to reduce the decree obtained but, simply, to defend the current action.
Lady Paton, in delivering the opinion of the court concluded that they were "not persuaded that the defenders have demonstrated that the Lord Ordinary[Lord Uist]made a material error of law, or made a critical finding of fact which has no basis in the evidence, or showed a demonstrable misunderstanding of relevant evidence, or displayed a demonstrable failure to consider relevant evidence, or reached a decision which cannot reasonably be explained or justified.":
As a result, the Inner House refused the appeal by the Defenders and felt it would be equitable to allow this action to proceed.
So, what next? Assuming the Defenders do not decide to appeal the decision of the Inner House to the Supreme Court in London, the case will return to a Lord Ordinary to hold a substantive evidential hearing on the facts (a Proof) to determine whether the Defenders are liable to compensate the Pursuers for the loss suffered by them, as well as to determine the value of such loss.
Such a hearing will probably take place in the second half of 2015 - nine years after Mr Ferguson's death.