Judge allows ‘time-barred’ damages claim over Glasgow bin lorry crash to proceed

A judge in the Court of Session exercised his discretion in favour of the pursuers by allowing the action to proceed after it emerged that an administrative error by their solicitors meant that the summons was not lodged for calling within the three-month time limit.

Lord Doherty 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.

‘Procedural oversight’

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 “procedural oversight” only became apparent to the pursuers’ solicitors on 12 June 2018 when a lawyer 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 defenders plead that each of the pursuers’ claims in the present action was time-barred in terms of sections 17 and 18 of the Prescription and Limitation (Scotland) Act 1973.  

‘Material prejudice’

However, the pursuers argued that in the circumstances, balancing the equities, the court should exercise its power under section 19A of 1973 Act to allow them to bring the action.

Counsel for the pursuers submitted that it was common ground that there was “no prejudice” to the defenders other than the loss of the time-bar defence.  

The first action had been raised within the triennium but the instance had fallen because, through a procedural oversight, the summons had not been called within three months and a day as required by rule 43.3(2).

But as soon as it had become apparent the pursuers’ solicitors promptly raised the present action.  

It was pointed out that the claim was not a stale claim, as it had been fully investigated by the defenders, and liability was not contested.  

There would be “material prejudice” to the pursuers if the action was not allowed to proceed, as they would be compelled to sue their solicitors in order to obtain reparation, which might not be straightforward, would mean that they would have to instruct new solicitors, and would likely lead to delay.

‘Cast iron case’

But counsel for the defenders submitted that the balance of the equities did not favour exercising its discretion to allow the action to proceed.  

While it was accepted that the only prejudice to the defenders would be the loss of the time-bar defence, that statutory protection was there for their benefit and they were entitled to take advantage of it.

The critical issue was whether the pursuers would have a good alternative remedy against their solicitors, and while the solicitors’ failure had been a mistake or oversight, there was no doubt that they had been “negligent”.

It followed that the pursuers would not suffer material prejudice because they would have a “cast iron case” against their solicitors.

If there was delay in the pursuers receiving compensation that would be unfortunate, but it was possible that an action against the solicitors might be resolved just as quickly as the present action would be if it were allowed to proceed.  

The “interests of justice” were not well served by an approach which too readily excused failures to comply with the rules of court, and it was argued that the court should be disinclined to exercise the s.19A power where, as here, the cause of the problem was a failure to comply with the rules of court.   

‘Weighty considerations’

Allowing the action to proceed, the judge observed that while the solicitors’ error was a “serious and culpable failure”, there was “no doubt” that the balance of equities favoured the pursuers.

In a written opinion, Lord Doherty said: “Apart from the failure to have the summons in the first action called timeously, the pursuers’ agents appear to have acted in an exemplary way. In particular, the principal agents’ solicitude towards the pursuers, their willingness to accept instructions on a conventional speculative basis, and their meeting of litigation outlays from their own funds, have been admirable. In very difficult circumstances they have developed a strong relationship of trust with their clients.   

“The failure to have the summons called was an oversight (and an explanation as to how it came to pass has been provided. There is no escaping it was a serious and culpable failure: although on the spectrum of culpability it appears to me to be less egregious than many of the reported cases where a solicitor has failed to serve a summons within the triennium.

“If the application is not granted the pursuers’ only redress will be against their solicitors.  My assessment is that an action of professional negligence against the solicitors would be very likely to succeed. Accordingly, I approach matters on the basis that if the s 19A discretion is not exercised in their favour the pursuers will not be without a means of redress.” 

“However,” he added, “notwithstanding the existence of the alternative remedy, in my opinion it is clear that the pursuers would be very materially prejudiced by a refusal to exercise the s.19A power. If the pursuers have to proceed against their solicitors they will have to find and instruct new representation in whom they have trust and confidence, and who would be prepared to accept instructions on a funding basis which is satisfactory to both solicitors and clients. 

“That process is likely to be difficult and challenging for each of the pursuers. It is likely to be especially fraught in the case of the first pursuer, having regard to her current mental health, her experience (on this hypothesis) of two abortive actions, and the history of difficulty in obtaining instructions from her. 

“The probable consequences would be very significant upset for the pursuers and material delay in their obtaining reparation. That upset and delay would be likely to have significant detrimental effects on the pursuers’ mental health (especially in the case of the first pursuer). In my opinion these are very weighty considerations.   

“In the whole circumstances I am in no doubt that the balance of the equities comes down in the pursuers’ favour. It follows that I am satisfied that the s.19A applications should be granted.”   

However, the local authority is set to appeal against the judge’s decision.