Appeal Court upholds judge’s decision to allow ‘time-barred’ damages claim over Glasgow bin lorry crash to proceed

The Inner House of the Court of Session held that the Lord Ordinary was entitled to exercise his discretion in favour of the respondents by allowing the action to proceed after it emerged that a “procedural oversight” by their solicitors meant that the summons was not lodged for calling within the three-month time limit.

The Lord Justice Clerk, Lady Dorrian, sitting with Lord Menzies and Lord Malcolm, heard that eight relatives of some of those who died in the accident on 22 December 2014 had first raised a chapter 43 action for damages against the defenders on 8 December 2017.

‘Administrative error’

The summons has been signetted three days earlier but was not called within three months and a day of its passing the signet, with the result that the instance automatically fell on 6 March 2018.

Over the next three months correspondence between the parties continued with a view to progressing the claims towards a possible settlement, but neither party recognised that the time limit for lodging the summons had expired.

The court was told that the administrative “error” only became apparent to the respondents’ solicitors on 12 June 2018 when an Edinburgh agent for the Glasgow firm asked the court to borrow out the principal summons so that it could be lodged for calling, only to be advised by the General Department of the Court of Session that the action had fallen and that a fresh summons would need to be lodged.

The summons in the present action was lodged for signetting on 19 June 2018 and was served on the council the following day.  

But the reclaimers, who had indicated that they would settle the case on a full liability basis, argued that each of the claims in the action was time-barred in terms of sections 17 and 18 of the Prescription and Limitation (Scotland) Act 1973.  

‘Balance of the equities’

The Lord Ordinary, Lord Doherty, that the “balance of the equities” favoured the respondents and exercise his power under section 19A of 1973 Act to allow them to bring the action.

The judge observed that the “sole prejudice” to the reclaimers would be the loss of the time bar defence, as if the case were to proceed there would be “no defence on the merits”, adding that several other claims arising from the incident had already been settled and the reclaimers had agreed to settle these claims on a full liability basis.

The Lord Ordinary considered that the respondents had to bear the responsibility for their agents’ conduct, and while there had been an oversight there was no escaping that it was a “serious and culpable failure”. 

The judge recognised that the respondents had an alternative remedy against the solicitors, which was likely to succeed, but to pursue the alternative remedy they would have to find and instruct new solicitors who would be prepared to accept instructions on a funding basis which was satisfactory to both solicitors and clients - process was likely to be difficult and challenging for each of them.

The probable consequences would be very significant upset for the respondents and material delay in obtaining reparation, which would be likely to have significant detrimental effects on their mental health, particularly the first respondent.

‘Material prejudice’

However, on appeal the council argued that the Lord Ordinary “erred in law” by finding that to pursue the alternative remedy would require the instruction of new principal solicitors, which was a process likely to be difficult and challenging for the respondents; this would result in a delay in obtaining damages; and that this would have a significant effect on the respondents’ mental health.

It was also submitted that the judge failed to take account of the relevant factor that the reclaimers would suffer “material prejudice” by sustaining a loss that was estimated between £400,000 and up to £2 million.

Further, the local authority argued that the Lord Ordinary placed to “too little weight” on certain relevant considerations, namely the existence of a strong alternative remedy; and that the loss of the statutory protection would result in material prejudice to the reclaimers, in a sum up to £2m.

He placed “too much weight” on the possibility that the respondents would require to find new agents; and any delay which might result from pursuing the alternative remedy, and thus he erred in carrying out the balancing exercise between the parties.

Refusing the appeal, the judges did not consider that there was any merit in the argument that the Lord Ordinary did not have a sufficient evidential basis for the findings which he made.

‘Reclaiming motion must fail’

Delivering the opinion of the court, the Lord Justice Clerk said: “In our view the Lord Ordinary was entitled to conclude, on balance, that the pursuers would be likely to require the services of new solicitors, in whom they could repose trust and confidence, notwithstanding the fact that the failure to observe the time limit seemed clearly to be that of the Edinburgh agent. 

“The fact that a clear case of negligence might lie against the Edinburgh agent does not mean that the local agent would not consider it necessary to withdraw from acting.”

She continued: “We do not consider that the Lord Ordinary required to have evidence to enable him to reach the conclusion that the need to pursue an alternative remedy would be likely to lead to material delay in resolution of the respondents’ claim, even if the negligence claim against the solicitors were to be litigated in the commercial court.”

On the remaining issue of the balancing exercise, the court held that the Lord Ordinary “gave due attention to all the relevant factors” and rejected the submission that the judge erred in the weight he attributed to the individual factors. 

Lady Dorrian concluded: “He recognised in terms that the respondents had a claim for professional negligence which ‘would be very likely to succeed’.

“He recognised that the reclaimers would suffer prejudice from the loss of the statutory protection, but he was entitled to take into account that this was the only prejudice which would be encountered by the reclaimers. 

“He was entitled to take account of the fact that this was only one of the factors which he required to consider, as was the availability of the alternative claim.

“What the Lord Ordinary required to do was make an assessment of all the relevant factors, and in our view this is what he did.

“We are satisfied that the Lord Ordinary was entitled to exercise his discretion in the way he did, and that the reclaiming motion must fail.