Mike Kemp: Time is of the essence

Mike Kemp

The general rule is that a personal injury claim should be either settled by agreement or a court action raised and served on the defender or defenders within three years of the date of the injury (the triennium), although there are some exceptions to the general rule. The court also has the discretion to allow a claim to be heard late but the case of Spencer v Cruddas and Others decided by the Court of Session last month underlines that this discretion will not be easily exercised in favour of a pursuer.

The background to the case is as follows: there were four defenders, the first and third defenders were the drivers of two of the vehicles and the second and fourth defenders were their respective insurers. The second defenders had primarily been dealing with the claim although there had been no agreement as to the split of liability between the two sets of drivers.

The court issued a signetted summons which required to be served on all four defenders before the triennium. At the point of it being signetted there were 18 days to the triennium. Service was accepted by solicitors on behalf of the first and second defenders and postal service was effected on the fourth defenders who were the insurers for the third defender. However, service on the third defender by post was unsuccessful.

The pursuer’s solicitors should not have attempted service on the third defender by post. With the fourth defenders (an insurance company) postal service is understandable as you can expect that there should be someone present to sign for papers sent by recorded delivery post. However, to try and serve on an individual there are always risks that they are not at home when the postman arrives because they are at work or on holiday. They could have moved home or, as happened to me in one case, died. You are taking a very big risk that you will not be able to effect service in time.

Even more worryingly, there was a 10-day gap between the court approving the summons and the postal service being attempted on the third defender. That is almost half of the time they had from when the summons was signetted until the triennium. So, at the time they decided to effect postal service, they had not 18 days but 8.

I understand from the judgment that the reason for not instructing Sheriff Officers or messengers-at-arms to serve on the third defender was in order to avoid the additional costs (approximately £100). The cost of the lost claim is not clear but given it was a Court of Session action, we can expect it to extend to tens of thousands of pounds. £100 is a small price to pay and, in the circumstances, it clearly ought to have been done.

Because of the difficulty in serving on the third defenders the summons was not allowed to call with the court and to therefore proceed as a defended action as not all defenders had received intimation of the action. There is no need to go into the technical details of that but it is safe to say that the failure to properly serve on the third defenders meant that the pursuer now had to rely upon the courts exercising their discretion to allow the claim to proceed, though late.

I think there were strong equitable arguments in favour of the pursuer for allowing the claim to proceed against the first and second defenders at least. The first and second defenders had been involved in the case for around two years before the triennium. They had received copies of medical reports and information in relation to liability.

They had even made interim payments to the pursuer. They had been served the court papers just before the triennium. They were as able to defend the claim three months after the triennium had passed as they had been three months before the triennium. However, the judge was not willing to exercise their discretion in favour of the pursuer, primarily to avoid encouraging other late claims. The pursuer must now seek to make a claim against their solicitors instead.

With good forward planning, you can meet the challenges set by time limits and ensure that court actions are raised in good time ahead of the triennium.

Mike Kemp is an associate at Thorntons LLP