[2012] CSOH 102



in the cause








Pursuer: Charteris, advocate; Watermans

Defender: McGregor, advocate; MDDUS

15 June 2012

[1] The defenders are a GP practice and the pursuer was in 2007,, a patient of one of their number. He avers that he attended with symptoms of renal failure which were, initially, not acted on. He avers that that was negligent and he has, as a result, suffered renal damage. He seeks damages.

[2] The pursuer accepts that his claim is time barred (see: Prescription and Limitation (Scotland) Act 1973 s.17). He asks that the equitable discretion available to the court to allow his claim to proceed notwithstanding the expiry of the triennium (see: s.19A of the 1973 Act) be exercised in his favour.

Failing to Raise the Action Timeously
[3] The relevant dates are, according to the pursuer's pleadings, as follows. The pursuer first attended the surgery complaining of the symptoms which proved to be indicative of renal failure on 3 December 2007, the results of subsequent blood tests were indicative of renal failure but it was not until 11 March 2008 that he was referred to the Royal Infirmary of Edinburgh. He was, by then, suffering from acute renal failure. Towards the end of April 2008, he was advised that his kidney failure was attributable to the failure of a doctor in the practice to follow up on his blood tests. He consulted his present solicitors in August 2008 and a complaint was intimated to the Medical and Dental Defence Union ("MDDUS") that month. Watermans instructed Dr Roderick Shaw for an expert opinion on negligence and he provided a report dated 11 December 2008. They also instructed Dr Caroline Whitworth for an opinion on the issue of causation and she provided a report dated 25 June 2009. The present summons was intimated to the defenders on 6 June 2011, after the expiry of the triennium.

The pursuer explains how it came to be that the triennium was missed:

"Watermans operate a Practice Management system which alerts the fee earner to the proximity of critical dates six months, three months and one month in advance of that date. The dates are then duplicated in the Outlook calendar to which everyone has access. This system has worked well with the present action being the first ever case in which a triennium has been missed in 11 years. During the Christmas period 2010 the employee of Watermans dealing with the pursuer's file left without notice. She left without inputting the time bar date in the firm's Practice Management diary system. This meant that no one within the firm was alerted to the approaching triennium through the Practice Management or Outlook system. She also failed to input the time bar dates of any impending timebars within her case load of approximately 180 files. A full review of her case load was carried out in January 2011 and a number of actions were raised as a matter of urgency in order to prevent the expiry of the triennium. The triennium in the present case was missed. The circumstances of the pursuer's illness, investigations and treatment were such that the triennium was not immediately apparent and there was a note on the file that report was awaited from the defender's solicitors. The employee to whom the pursuer's file was transferred was off on long term sick leave from February 2011 to 1st April 2011 and then again from 11th to 23rd May 2011. During a comprehensive file review in May 2011 a further member of Watermans' staff noticed that the case had no critical dates associated with it and this prompted a review in which she discovered that the action ought to have been raised and took immediate steps to do so resulting in the summons being intimated on the defenders on 6th June 2011."

The defenders response to that set of averments is:

"Explained and averred that on the hypothesis of fact advanced by the pursuer, he has reasonable prospects of success in an alternative claim against his solicitors."

Case for Exercising the Equitable Discretion in Favour of the Pursuer
[4] The pursuer avers that he will be prejudiced if his action is not allowed to proceed. He avers:

"He will have to litigate a second time. He will face a further delay in reaching a conclusion. He will require to fund a second litigation. The pursuer's present solicitors are conducting the present litigation on a speculative basis. They have underwritten his costs and are not charging a success fee. Watermans have undertaken to fund the present litigation through to a conclusion and to underwrite any adverse awards in expenses. It is unlikely that the pursuer will obtain a similarly advantageous funding arrangement with other solicitors. As condescended upon above the pursuer receives kidney dialysis three times each week and is physically and emotionally exhausted. He does not feel able to find a new firm of solicitors and to canvass all the issues of his action afresh. He has been with Watermans from three years and they know his case well and the pursuer has a good working relationship with them."

[5] The defenders, in response, make no admissions regarding any difficulties being or likely to be experienced by the pursuer in instructing a fresh claim, question why the triennium was not immediately apparent given that the MDDUS was advised by Watermans in a letter that, about a week after 11 March 2008, the pursuer was told by doctors at the Royal Infirmary of Edinburgh that had his abnormal kidney function been detected earlier, he could have been treated successfully. They also question why the triennium did not become immediately apparent when the pursuer's file was reviewed.

Defenders' Submissions
[6] Mr McGregor submitted that the pursuer's averments were irrelevant. They were not sufficient to permit the court to exercise the discretion available under section 19A. His averments showed that the solicitor previously dealing with the claim had left at Christmas 2010 without having entered the triennium in the firm's diary. That was plainly indicative of negligence. There were then no averments of what happened between that date and the sick leave of the employee to whom the pursuer's file was transferred. The failure to review and identify the problem during that period was also indicative of negligence - if the file was reviewed then there was either a failure to note the time bar and enter it into the firm's diary system or there was a failure, having noted the time bar, to raise a timeous action (which they still had time to do). There were no averments explaining what prompted the file review that occurred in May 2011 and no explanation of why such a review had not been carried out earlier. The pursuer clearly had a good claim against his solicitors for their failure to raise his claim timeously.

[7] For sec 19A purposes, the conduct of the pursuer and of his solicitors were to be taken as one and the same and required to be examined: Carson v Howard Doris 1981 SLT 273, Donald v Rutherford 1984 SLT 70, Forsyth v A.F.Stoddard & Co Ltd 1985 SLT 51, A v N 2009 CSIH 29. As to prejudice, the pursuer was wrong to suggest that there would be no prejudice to the defenders; they would lose the protection of the "cast iron" defence afforded to them by sec 17 of the 1973 Act. The onus was on the pursuer to demonstrate that equitable considerations favoured him. He had not done so. Nothing relied on was such as to tip the scales in his favour, particularly when he had available to him the benefit of a claim against his solicitor.

[8] Mr McGregor also referred, by way of illustration, to the cases of Fleming v Keiller 2006 CSOH 163 and Morrice v Martin Retail Group 2003 SCLR 289.

[9] The action should, he submitted, be dismissed. The averments were not sufficient for enquiry at a preliminary proof.

Pursuer's Submissions
[10] Ms Charteris initially accepted that the sec 19A issue should be determined on the pleadings but, in the course of her submissions, her position changed and her motion became that I should allow a preliminary proof to determine whether or not the equitable discretion should be exercised in favour of the pursuer.

[11] She accepted that the action was time barred. Turning to the discretion available under sec 19A, she submitted that it should not be exercised narrowly: Carson v Howard Doris, that its exercise involved a balancing of all the relevant circumstances: Donald v Rutherford, that the question for the court was "where do the equities lie?" B v Murray (no. 2) 2005 CSOH 70, that the three factors which were usually relevant were the pursuer's conduct, likely prejudice to the pursuer and likely prejudice to the defender: Carson v Howard Doris , that it was accepted that the onus was on the pursuer , that that onus was of no more significance than the onus on the pursuer to prove his loss: Campbell v Hewcon Ltd 2005 CSOH 173 and that it was accepted that before a court can properly be asked to exercise the discretion, the pursuer must aver facts and circumstances which were potentially sufficient for that purpose: Clark v McLean 1994 SC 410, Cowan v Toffolo Jackson & Co Ltd 1998 SLT 1000, Nimmo v British Railways Board 1999 SLT 778 and Morrice v Martin Retail Group Ltd. She also referred, in that regard to Malcolm v Dundee City Council 2007 CSOH 38.

[12] Ms Charteris accepted that negligence of itself was not usually a good reason for the exercise of the discretion, that the pursuer was answerable for fault on the part of his advisor, that the nature of the explanation for missing the time bar had to be considered, and that the fact of a potential action against the advisor was relevant. She added, however, that the strength of the case against the advisor was relevant as were any difficulties likely to be experienced by the pursuer in pursuing it.

[13] Applying these principles to the circumstances of the present case, Ms Charteris submitted that the averment showed that there were extenuating circumstances in which the triennium was missed by the pursuer's solicitor. The solicitor to whom his file was transferred went off sick. A file review by another solicitor revealed the error. There would be prejudice to the pursuer if he had to instruct fresh solicitors - he required dialysis three times per week which made it particularly difficult for him. Further, his claim against the defenders might have been justified. In all the circumstances, there should be an enquiry by way of preliminary proof prior to determining the sec 19A issue.

Discussion and Decision
[14] I have reached the conclusion that there is no basis in the averments which would enable the court to exercise the discretion under sec 19A in favour of the pursuer. I accept, of course, that the decision in each case must depend on the particular facts and circumstances, the discretion being a wide and unfettered one: Donald v Rutherford. However, that being so, there is an onus on the pursuer to provide a full and frank explanation of how it came to be that the sec 17 time bar was missed. In a case such as the present, where the fault lies at the door of the pursuer's solicitor, that means that a full and frank explanation has to be provided of how advisors who ought to be acutely aware of the risk of adverse consequences to their client if a time bar is missed, failed to raise a timeous action.

[15] The pursuer sought legal advice early in the triennium - the averments state that he consulted Watermans in August 2008. It was not until May 2011, some two years and ten months later, that they identified the time bar. None of the pursuer's averments suggest that there was anything difficult about identification of the relevant date. The pursuer does not, for instance, counter the defenders' averments that it was evident from Watermans' own letter to the MDDUS in August 2008 that they had by that date, the relevant information to enable them to identify that time probably started running in March 2008. Nothing seems, however, to have been done by way of marking the file or entering the time bar on the firm's electronic system at that time or at any time prior to the expiry of the triennium.

[16] Moreover, when it was realised that the employee who had been dealing with this and other files had not been entering time bar dates into the system, a supposedly "full review" of all her files in January 2011, failed to identify that no "critical dates" had been identified for this case. The latter is plainly indicative of the review carried out in January 2011 not being a full or adequate review at all. A timeous action could have been raised at that stage. The pursuer then fails to make any averments about what attention, if any, was given to the pursuer's case between January 2011 and May 2011, other than, inferentially, that it was allocated to an employee who went on long term sickness absence. That was in circumstances where Watermans plainly ought to have been aware of the risk that there were critical dates that had not been identified in each and every litigation file that was being handled by the employee who left at Christmas 2010. If the pursuer's file was allocated to the employee who went off sick in February 2011, action should have been taken to check it at that stage (since it had no critical dates noted on it at all, according to the pursuer's averments) and it is impossible to resist the impression that a casual or careless attitude was adopted where vigilance was called for. There are, put shortly, unanswered, relevant questions as to how it was that the time bar date was not identified during the triennium as, on the face of matters, it could and should have been. The lack of a full and frank explanation answering that obvious question, of itself, weighs against the exercise of the discretion. I would add that the pursuer's averments are not demonstrative of the failures on the part of his solicitor being excusable or, as Ms Charteris submitted, failures which occurred in extenuating circumstances.

[17] Turning to questions of prejudice, it is accepted that the pursuer will, if the discretion is not exercised in his favour, have a claim against his solicitor. Whilst he will, I accept, have to raise a separate action, that is, of itself, a consequence of the effect of sec 17 and, as observed by Lord Nimmo Smith in the case of Cowan, not sufficient for the exercise of the discretion. His prospects of success in an action against his solicitor appear, on the basis of his averments and the submissions made in the course of debate, to be good. He does not, accordingly, lack a remedy if the discretion is not exercised. Further, his claim against these defenders has already been investigated - reference is made to the relevant expert reports having been obtained some time ago. Whilst there may be some delay as compared to the time that it would have taken to bring the present action to a conclusion, I do not see that any such delay ought to carry much weight; quite apart from anything else, it seems very difficult to predict when the present action would have been completed as opposed to a claim by the pursuer against his solicitor, particularly when the relative prospects of settlement are allowed for. As regards the pursuer's personal difficulties, arising from his health, he is evidently capable of instructing litigation - there is no suggestion that there have been any difficulties in his instructing the present case - and it must always be the case that a pursuer in such a position is reluctant to undergo the trouble and inconvenience of instructing a new solicitor. It is, further, reasonable to expect the new solicitor to be able to acquaint herself with the details of the pursuer's claim in the present case from these pleadings, from the expert reports referred to and from his file, all of which will minimise any effort that the pursuer himself requires to bring to bear. Ms Charteris did not seek to make anything of the averment that the pursuer will require to find a new solicitor; I would but observe that , again, that is a result of the operation of sec 17 (indeed, it might have been expected that Watermans would have withdrawn from acting, on conflict grounds, already) and if the pursuer is not aware of an alternative solicitor, the Law Society of Scotland routinely - via their website, for instance - provide assistance in helping members of the public to find a solicitor to act for them.

[18] In all these circumstances, I am not persuaded that these averments set out a sufficient case for the exercise of the sec 19A discretion.

[19] I will, accordingly, pronounce an interlocutor dismissing the action.