Client sues former solicitors over failure to raise personal injury action in time

Christopher Brits raised an action against Kilcoyne and Co after they missed the three-year time limit in which to bring proceedings.

The pursuer suffered an accident at work on 9 April 2009 and instructed the defenders to raise an action for damages, but they failed to do so by 9 April 2012, thereby missing the triennium and shortly afterwards the pursuer instructed a new firm, Digby Brown to pursue a claim against his former solicitors.

Lady Stacey in the Court of Session heard a procedure roll discussion in which counsel for the pursuer argued that the defenders’ pleadings relating to waiver were “irrelevant” and should not be remitted to probation, while counsel for the defenders opposed the motion and sought a proof before answer.

The averments to which the pursuer’s first plea in law were directed were found in answer 3, in which the defenders admitted that they were instructed to pursue a personal injury claim against the pursuer’s former employers and that when an action was raised, after the triennium, by the pursuer’s new solicitors, the employers took a plea of time bar.

They admitted that that having been done, a telephone discussion took place between a representative of Digby Brown and a representative of the defenders’ insurers, during which there was a discussion about the merits of a plea under section 19A of the Prescription and Limitation (Scotland) Act 1973 which had been made by the pursuer.

They admitted that it was agreed that its prospects of success were poor.

The defenders then made averments that they did not know nor admit the precise circumstances of the pursuer’s accident.

They went on to make positive averments that on 26 April 2012, Mr Hotson, representative of the insurers of the employers sent an email to Digby Brown, in which he stated that his client would “not be taking the time bar defence”.

The defenders claim that the email was an “unequivocal waiver” of the employers’ right to plead a limitation defence upon which the pursuer was entitled to found in the pursuit of his claim, but the pursuer did not do so and instead pled a case under section 19A of the 1973 Act.

No reference was made by the pursuer to Mr Hotson’s email and the defenders averred that the pursuer failed to plead that the email constituted a waiver of the employers’ right to plead a limitation defence.

They aver that that failure was “unreasonable” and that it “broke any causal connection that existed” between the defenders’ failure to raise proceedings prior to 9 April 2012 and any loss sustained by the pursuer.

The pursuer’s pleadings in response to the pleadings from the defender admitted the existence of the email and its terms, but counsel argued that the email “did not amount to an unequivocal and irrevocable waiver” of the employer’s right to plead a limitation defence.

It was submitted that the defenders’ averments were “insufficient” to allow them a proof on the existence of an unequivocal and irrevocable waiver and to prove that the statement by the defenders’ insurer was binding.

However, counsel for the defenders argued that a proof before answer should be allowed on the pleadings as they stood.

It was submitted that his pleadings were clear as the term waiver “implied that it was both unequivocal and irrevocable”.

Counsel argued that he had sufficient pleadings and that it was necessary for the court to hear evidence about the background circumstances in which the statement was made before the court could decide that it was not an unequivocal and irrevocable statement.

But the judge preferred the arguments for the pursuer. In a written opinion, Lady Stacey said: “As a matter of pleading, the defender has stated that the insurer for the former employers made an extra judicial statement that he would not take a plea of time bar. He then proceeded to take that plea.

“It seems to me that counsel for the pursuer is correct to argue that the pleadings state that the statement was made by the insurer at an early stage of the action. The pleadings only state that it was an extra judicial statement of intention and do not offer to prove that which is required, which it was either unilateral promise or a waiver of the insurer’s clients’ rights.

“The difficulty for the defenders is that they have averred all that they can aver about the statement that was made by Mr Hotson: he indicated at an early stage, extra judicially, that his client, that is the firm he insured, would not take the plea of time bar. He then changed his mind and the plea was taken.

“The authorities show that in those circumstances he was entitled to act as he did. There are no averments that support a plea that the right to take that plea was waived.”