The dangers of serving court actions close to the time bar

  • Insight

11 October 2018

The dangers of serving a court action close to the legal time limit for doing so has been highlighted in the case of Spencer v Cruddas & Others [2018] CSOH 95, which was dismissed following various procedural failures.

The case provides a helpful reminder of the importance for solicitors acting for pursuers in court actions to ensure that service of the summons or writ is actually effected on time and before the case is formally put into court. 

This is especially so where there are multiple defenders, as in that situation there can be added complexity in completing service on all the different parties.  If service on even only one of the defenders becomes a problem, that can have an effect on the course of the whole court action.   

Background

The case of Spencer involved a pursuer who was a passenger on a motorbike. He was injured in an accident on 6 July 2014.  His solicitors were instructed to raise a court action seeking damages both jointly and separately from a number of different defenders who were said to be at fault.  This meant that for the action to progress, each of the four defenders had to have the summons served on them individually.

In this case, the summons was successfully served on the first, second and fourth defenders, however, postal service on the third defenders had failed on two separate occasions.  This meant that the action had not been served on those third defenders by the deadline for the case to be lodged in court for ‘calling’, which must take place within three months and a day of the summons originally being ‘signetted’ at the court.  

When the pursuer’s solicitors tried to lodge the summons for calling at that point, the administrative office of the court, the General Department of the Court of Session, did not allow this because service had not been effected on all four defenders.  The solicitors for the pursuer did not seek the permission of the court to extend the three month period for lodging the summons to ‘call’ (which formally starts the case in court) in the circumstances where one of the defenders had not actually had it served on them yet.  The result of this was that the ‘instance’ (the case) fell and the court action was no longer in existence.

A second court action raised

In order to deal with this, a new court action was raised on 20 September 2017 – which was after the three year time limit for personal injury actions to be raised.  The service of the new summons was once again successful on the first, second and fourth defenders. As a result of the previous issues with service by post, the pursuer’s solicitors instructed court officers to serve the summons on the third defender.  The solicitors had not done this first time round due to additional costs involved.

This second Summons was then successfully lodged for calling at court and by the time of a procedural hearing in the case, it had been agreed that the third and fourth defenders would be let out of the case having reached a settlement with the pursuer. 

This left the first and second defenders who now maintained the claim was time-barred and should not be allowed to continue against them.

The court’s decision

A procedural hearing in the Court of Session heard arguments from the parties.  The pursuer’s solicitors relied on the provisions of section 19A of the Prescription and Limitation (Scotland) Act 1973.  These provisions can allow the court to exercise discretion in allowing court actions to continue where they have been started after the usual three year time limit for personal injury cases if the circumstances justify it.

It was argued that it was equitable to allow the action to proceed because the first and second defenders had received the first summons on time and had in fact intimated defences. It was argued it was only due to a technicality that formal service was not effected on the third defenders, and that this did not and had not concerned the first and second defenders. 

It was also submitted interim damages had been paid, liability was now admitted, to have a remedy against solicitors would cause further delay in quantification and special procedure for reparation actions would not be available.

Lady Clark noted that the 1973 Act gives the court wide discretion within the “context of the particular facts and circumstances of the individual case.”  She considered that “it is important to recognise that the statutory scheme set out in the 1973 Act does give important protection to defenders.”

She observed that the first and second defenders appeared to have engaged with the action and complied with the rules of procedure, suffering “significant prejudice” if they lost the protection of the statutory time bar provisions. She considered the prejudice to the defenders would outweigh the prejudice to the pursuer.

Lady Clark considered the availability of a remedy for the pursuer against his solicitors, and was persuaded that there was “a very strong prima facie case of professional negligence.” She said that there were “a number of actions over a period which the pursuer’s solicitors could have taken to avert the time bar problem.”

She observed that she would expect the pursuer’s solicitors or their insurers to take a pragmatic approach and importantly she stated that she did not consider this to be a case where the pursuer would lack a remedy or have that remedy long delayed.

Conclusion

This case serves as a reminder of the dangers of serving a court action so close to time bar and the relatively strict approach that the court takes when considering whether or not it is equitable to extend it.

Although the alternative remedy available to a pursuer is not decisive, the courts have demonstrated a consistent refusal to exercise discretion in favour of the pursuer where an alternative remedy exists. In this case the remedy was against the pursuer’s solicitors.

For further information on this or any other personal injury matter please contact

Natalie McCartney

  • Solicitor Advocate
  • Senior Associate

Edinburgh Glasgow

0131 270 7841