The case involved a personal injury claim arising from an accident when the deceased fell at the defenders' premises on 6 August 2010. She had contacted Quantum Claims who had intimated her claim on 20 September 2010. After carrying out investigations the defenders' insurers denied liability on 31 March 2011. Solicitors and Counsel were instructed to act for the deceased and, after some further lines of enquiry were investigated, a summons was served on 26 March 2013 (within the triennium). However it was then discovered that the deceased had died on 12 January 2013 as a result of an unrelated medical condition. A second action was prepared on behalf of the executors of the deceased and served on the defenders on 5 September 2013. As this was after the expiry of the triennium, the pursuers asked the court to exercise their discretion under section 19A of the 1973 Act. The pursuers argued that the defenders would not sustain any prejudice as the claim was intimated to them soon after the accident, was fully investigated by the insurers by 31 March 2011 and the present action was virtually identical in terms to the one raised within the triennium. In addition, they claimed that they had no reasonable prospects of success in a claim against their agents because their agents had no reason to anticipate the death of the deceased before the action was timeously raised.
The defenders opposed this. They said that the pursuers were likely to have an alternative remedy against their agents as their agents were aware of the death well within the triennium and knew or ought to have known the action was incompetent as it was raised after the death. They also claimed that the death of the deceased would result in prejudice as matters of sole fault, contributory negligence and causation were likely to be difficult to deal with.
Neither party has argued that a proof was necessary as both agreed that the availability or non-availability of an alternative remedy was likely to be a decisive factor. When considering the approach which should be taken to a request to the court to apply section 19A, Lord Doherty noted that it was well established that the court's discretion was unfettered. However, he considered comments by Lord Cameron in the case of Donald v Rutherford 1984 SLT 70 who noted that the section carries an implication that it is for the pursuer to satisfy the court that his claim should be allowed to proceed and that the court should proceed on a fair balancing of the interests and conduct of the parties as well as the nature and circumstances and prospects of the time-barred action.
Lord Doherty felt the only prejudice of substance to the defenders would be the loss of the time bar defence and he was unimpressed by the suggestion that the unavailability of the deceased to give evidence at the proof was a matter which should weigh in the defenders' favour. He felt that the circumstances did not disclose any personal fault on the part of the pursuers' solicitors and was not persuaded that the defenders would suffer any material disadvantage. He considered that a factor which would have much greater significance was whether the pursuers would have an alternative remedy against their solicitors which has good prospects of success. He considered the first division's opinion in A v N 2009 SC 499 which provided that the possibility and prospects of an alternative remedy was a relevant factor to be taken into account.
As to whether a duty arose in the present action, he restricted himself to observing that the establishment of a duty would not be free from difficulty. With regard to whether a breach of duty could be established, he considered it was arguable that no solicitor of ordinary competence would have failed to intimate the claim prior to the expiry of the triennium. However the situation was much less blameworthy than the ordinary situation where a solicitor failed to raise an action within a triennium. Whilst there would be an arguable case, the prospects of success would be neither good nor reasonable and it would be a far less satisfactory option for the pursuers than being allowed to proceed with the present action.
He was ultimately satisfied that in the circumstances it was equitable that the pursuers be allowed to bring the present action against the defenders and he exercised the discretion in section 19A to allow the pursuers to proceed with the action.
Not doubt the pursuers and their agents were relieved that the action can be allowed to continue. However, there are some points of wider interest which can be taken from this case. It is clear that the question of whether section 19A should be applied will be dependent on the facts and circumstances of the action and the judge's decision in this matter in unfettered. However the questions of whether there is an alternative remedy available to the pursuer and whether this would have good prospects of success can clearly be very relevant factors for the court to consider.