Hamilton sheriff remits sisters’ claims for personal injury and vehicle repair costs to personal injury roll

About this case:

• Citation:
  [2023] SC HAM 39
• Judgment:
  External link
• Court:
  Sheriff Court
• Judge:
  Sheriff J Speir

The pursuers, Rose Amzaleg and her sister sought just over £12,000 in personal injury damages and costs for vehicle repair. The defender, Hastings Insurance Services Ltd, disputed liability for the accident and maintained that the actions were incompetent.

The case was heard by Sheriff John Speir at Hamilton Sheriff Court. Ince & Co, solicitors, appeared for the pursuers and Clyde & Co, solicitors, for the defender.

Cured by the court

On 6 January 2020, the second pursuer was involved in an accident with the defender’s insured while she was driving a car belonging to the first pursuer. As a result, there was damage to the first pursuer’s vehicle and the second pursuer sustained personal injuries. The pursuers raised two concurrent claims in the same ordinary action, with the first seeking payment of £4,592.17 for repairs to her vehicle and insurance excess and the second seeking £7,500 in solatium for her personal injuries.

It was argued by the defender that the second pursuer’s claim ought to have been brought as a personal injuries action, and if that claim were to be dismissed for want of form the first pursuer’s claim would also fall to be dismissed due to being below the financial threshold for an ordinary action. Accordingly, the entire action was incompetent.

In response to the defender’s argument for dismissal, the pursuers submitted that they were bound by the rule, established in Stevenson v Pontifex & Wood (1887), that all losses arising from a single ground of action must be recovered in one claim. This created a dilemma given the differing natures of the pursuers’ claims, and the only viable solution was for them to be brought together in an ordinary action.

The pursuers’ alternative position was that any defect in form could be cured by the court by remitting the action to the personal injury roll rather than resulting in the dismissal of the action. The defender submitted that the court’s inherent power to do so could not be applied in this case as the first pursuer’s case could not be so remitted. As it was not competent to split up the action and remit each constituent part to the correct form of procedure the only available option was for the action to be dismissed as a whole.

Misconstrues the rule

In his decision, Sheriff Speir said of the Pontifex rule: “The crux of the rule is a prohibition against repeat claims for damages being made arising out of the same delictual act. The defender’s submission misconstrues the rule as requiring different parties who may each have a discrete claim from such an act, in this case a road traffic accident, being bound to bring their claims in the same action.”

He continued: “Although long-standing case law and rules of court prescribe that surviving relatives who wish to sue for damages arising from a death should conjoin in one action that does not transcend into a general requirement. Accordingly, I reject the submission made on behalf of the pursuers in this regard and with it the assertion that the second pursuer had no alternative but to raise an ordinary action rather than one under chapter 36.”

Addressing what ought to be done with the claims, the sheriff noted: “In the present case both pursuers claim to have been aggrieved by the same act of the defender and there is no obvious prejudice in both their claims being determined in the same proceedings. Indeed the agent for the defender quite properly conceded that course would have been appropriate had the second pursuer’s claim been made in proper form ab initio.”

He went on to say: “The error here is not eloquent of the type of radical defect resulting in the action being a fundamental nullity. The present action was raised within the statutory time limits of five and three years applicable to the first and second pursuers’ claims, respectively. The second defender’s claim ought to have followed the prescribed procedure in chapter 36.”

Sheriff Speir concluded: “Both claims are contingent on liability being established in what is a straightforward road traffic accident dispute. That being so I can see no good reason for now treating the pursuers claims differently at this stage. In conclusion I consider the interests of justice come down in favour of granting relief to both pursuers.”

The action was accordingly appointed to proceed as a personal injuries action.