Scottish court takes strong line on limitation

Kriss Spencer v Richard Cruddas and others [25.09.18]

Date published

28/09/2018

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This Scottish road traffic accident claim is a victory for defenders. In this case, the court maintained a strong line on the defenders’ statutory protection under the Prescription and Limitation (Scotland) Act 1973, strictly applying the three-year personal injury limitation period.

Background

This is a personal injury case pursued by the pillion passenger on a motorbike. The pursuer claimed he was injured when the driver of the motorbike he was on was overtaking a car, which turned right and they collided. The case was raised against the rider, driver and their respective insurers.

The issue before the court was whether the present action should be allowed to proceed as it was commenced outside the three-year limitation period. Owing to difficulties encountered by the pursuer’s solicitors in effecting service on the driver, the original proceedings had to be re-issued after limitation expired.

Insurers for the driver had agreed with the pursuer to settle the case extra-judicially. The rider and his insurers maintained that the action should not be allowed to proceed, as it was time barred.

The pursuer argued that the action should proceed as the first defenders had received the first summons within the time limit, an interim payment had been paid and liability was now admitted.

Decision

In her decision, the Judge noted that the court has very wide discretion to disapply the time-bar but on this particular case, she decided not to use this discretion and dismissed the claim.

The prejudice to the defenders in this instance would outweigh the prejudice to the pursuer, and the Judge’s reasoning focussed on the importance of parliament enacting specific limitations to give protection to wrongdoers in a case where the defenders had engaged and complied fully with the rules of procedure. A further important consideration was the pursuer’s potential remedy by way of a professional negligence case against his solicitor.

Comment

Although discretion is given to the court, it is important to recognise that Scottish limitation rules give important protection to defenders. The court will therefore look at the circumstances of each particular case in exercising its discretion, but will not allow time barred cases to proceed without full consideration of whether it is equitable to do so. This is always worth bearing in mind when pre-action settlement negotiations are continuing and limitation is approaching. As in the rest of the UK, it is possible to waive limitation by agreement.

In non-personal injury cases, where the limit is set at five years, it should be noted that such an agreement is not possible, further illustrating the strict approach adopted in Scotland. Pursuers and defenders alike ignore them at their peril.

This case review was co-authored by Stephanie Law, Trainee Solicitor, Edinburgh.