Time-barred damages claim dismissed due to solicitors’ problems with service of summons

A damages claim for personal injuries arising out of a road traffic accident has been dismissed after the pursuer’s lawyer’s encountered a series of “procedural problems” which resulted in the action being raised after the three-year time bar.

 

A judge in the Court of Session ruled that the “prejudice to the defenders would outweigh the prejudice to the pursuer” if the action were allowed to proceed, but added that there was “a very strong prima facie case of professional negligence by the pursuer’s solicitors” due to decisions made after difficulties arose with service of the action.

 

 

Lady Clark of Calton heard that the pursuer Kriss Spencer, a pillion passenger on a motorbike, was injured in an accident on 6 July 2014.

 

Lawyers Slater & Gordon were instructed by the pursuer to raise an action under chapter 43 procedure claiming damages jointly and severally from four defenders: (first) the driver of the motorbike, Richard Cruddas; (second) his insurers; (third) the driver of a car that turned right as the motorbike was overtaking it; and (fourth) that driver’s insurers.

 

The issue before the court at the procedure roll debate was whether the present action should be allowed to proceed in terms of section 19A of the Prescription and Limitation (Scotland) Act 1973, as it was commenced more than three years after 6 July 2014. 

 

The court was told that service of a summons signetted on 16 June 2017 had been accepted by the second defenders’ solicitors on behalf of the first two defenders, but there were procedural problems encountered by the pursuer’s solicitors which commenced with difficulties in effecting service on the third defender.

 

Postal citation sent to the third defender failed, as did a second attempt at postal service, and the General Department of the Court of Session would not allow the summons to be lodged for calling without service having been effected on the third defender.

 

 

Due to an “administrative oversight”, no motion was made to extend the period for lodging the summons for calling, as the solicitor dealing with the pursuer’s case had been on holiday for a period, and the instance fell.

 

Thereafter a further summons was signetted on 20 September 2017, with service again accepted by the first and second defenders.

 

The pursuer’s solicitors instructed messengers-at-arms to serve the summons on the third defender - having previously decided not to do this due to the “additional costs” involved - and service was effected, while postal service was effected on the fourth defenders.

 

The second summons was successfully lodged for calling, but by the date of the procedure roll, the third and fourth defenders had been assoilzied from the conclusions of the summons, having agreed by joint minute to settle the action extrajudicially. 

 

The present action therefore proceeded only against the first and second defenders who maintained the claim was “time barred” and should not be allowed to proceed.

 

 

For the pursuer it was argued that it was “equitable” to allow the action to proceed, as those defenders had received the first summons within the time allowed and had sent their defences.

 

It was only due to a “technicality” that formal service was not effected and the technicality related to problems of service on the the failure was due to a technicality which did not concern those defenders.

 

It was also submitted that interim damages had been paid; liability had now been admitted; and to have to seek a remedy against his solicitors would cause further delay and problems of quantification; and the special procedure for reparation actions would not be available.

 

Dismissing the action, the judge observed that there were “a number of actions over a period which the pursuer’s solicitors could have taken to avert the time bar problem”.

 

 

In a written opinion, Lady Clark said: “For policy reasons Parliament has made certain decisions about time limits. Although discretion is given to the court, I consider that it is important to recognise that the statutory scheme set out in the 1973 Act does give important protection to defenders.

 

“Part of the history which I considered to be of particular importance was the early history of engagement about the claim between the pursuer’s solicitors and the solicitors of the first and second defenders; the payment of interim damages; the timeous service of the summons on the first and second defenders; the ability of the first and second defenders to draft defences; and the fact that liability is now admitted.”

 

When considering the availability of a remedy for the pursuer against his solicitors, the judge observed that, due to the decision making by the pursuer’s solicitors about the mode and timing of service and the clear problems which had arisen, that there is “a very strong prima facie case of professional negligence”.

 

She added: “I considered there was some force in the submission by counsel for the pursuer that there is merit in liability falling on the wrongdoer who has negligently caused loss, injury and damage in a road traffic accident rather than a solicitor who has made an error or errors in administration or decision making in relation to pursuit of a claim with resulting time bar problems. 

 

“In the circumstances of this case, however, this is not a factor which tips the balance in favour of the pursuer. Parliament enacted specific limitation and prescription provisions to give protection to wrongdoers and there are complex policy reasons for this. 

 

“The first and second defenders appear to have engaged with the action and complied with the rules of procedure and will suffer significant prejudice if they lose the protection of the statutory time bar provisions. I consider the prejudice to the defenders would outweigh the prejudice to the pursuer in this case.

 

“Taking into account all the circumstances, I am not persuaded that it is equitable to allow the pursuer to bring this action.”