Where this is not done a time bar can arise which will result in a pursuer being prevented from proceeding regardless of the merits of their claim.
In most cases where a claim is based on injury or death arising from an accident in Scotland the time limit for raising a claim would be three years from the date of the accident. This is set out in the Prescription and Limitation (Scotland) Act 1973 (the 1973 Act). However it is possible that other rules may apply. One example of this is illustrated in the recent Supreme Court decision of Warner v Scapa Flow Charters  UKSC 52 where the court considered time bar rules contained in the Athens Convention relating to the Carriage of Passengers and their Luggage by Sea 1974 (the Athens Convention).
Basis of the claim
The case arose following the death of an individual as a result of a diving accident which took place north west of Cape Wrath at the North of Scotland. The deceased had chartered a vessel which the defender owned and operated for a week long diving trip in August 2012. The pursuer raised an action alleging that the deceased's death was due to the fault and negligence of the defender. She was suing both as an individual and as a guardian for their young son.
When the action was raised the defender argued, as a preliminary point, that it was time barred. The circumstances of the accident meant that the claim was governed by the Athens Convention. Article 16 of the Athens Convention provides a two year period running from the date on which the deceased should have disembarked from the vessel. This would have been 18 August 2012 as that was the date when his charter of the vessel was due to end. The case had not been raised within two years of that date.
There was a dispute about the extent to which the two year period could be extended to three years as allowed for by article 16(3) of the Athens Convention, the terms of which are as follows:
The law of the court seized of the case shall govern the grounds of suspension and interruption of limitation periods, but in no case shall an action under this Convention be brought after the expiration of a period of three years from the date of disembarkation of the passenger or from the date when disembarkation should have taken place, whichever is later.
The judge at first instance determined, after hearing only legal arguments on this point, that the claim was time barred and dismissed it. This decision was initially challenged in the Inner House of the Court of Session. They dismissed the pursuer's claim as an individual as being time barred. However, they found that the action the pursuer raised as a guardian on behalf of her son was not time barred.
Appeal to the Supreme Court
The defender appealed the Inner House's decision that the pursuer's claim as a guardian on behalf of her son was not time barred to the Supreme Court. The pursuer did not appeal the finding that her claim as an individual was time barred.
The Supreme Court dismissed the defender's appeal in a decision by Lord Hodge with which the other's agreed. The judgment discusses the correct approach to interpretation of an international convention. It is for the courts to look at the objective meaning of the words used and the purpose of the convention as a whole. Although there were some aids which could assist with interpretation of an international convention, they were not of any assistance in this case.
When interpreting the terms of article 16(3) the court looked, initially, at the meaning of the words "suspension and interruption". It did not accept the technical meaning which the defender sought to apply and held that there was no consensus that suspension occurs only after a prescription or limitation period has commenced. The meaning of "grounds of suspension … of limitation periods" was sufficiently wide to cover domestic rules which postpone the start of a limitation period as well as those which stop the clock after the limitation period has begun. The existence of a ground in a domestic limitation statute which suspended the limitation periods in that statute was sufficient to bring article 16(3) of the Athens Convention into operation and extend the time bar by one year.
Finally the court considered whether section 18 of the 1973 Act could be applied to extend the two year period in article 16 of the Athens Convention. The relevant part of the 1973 Act which could extend the time bar was section 18(3). This provided that any time during which a relative of the deceased was under legal disability by non-age or unsoundness of mind was to be disregarded for the purposes of computation of the limitation period within which the relative's claim must be brought. The non-age provision applied to the son as he was under the age of 16 set by section 1 of the Age of Legal Capacity (Scotland) Act 1991.
The court made the following observations when analysing the impact of section 18 on article 16:
- there is no question that section 18(3) postpones the start of the limitation period, rather it postpones the expiry of the limitation period, it instructs the court to disregard the time during which the pursuer is under legal disability;
- the legal disability (recognised in section 18(3)) has the effect of suspending the running of time on the two year limitation period under the Athens Convention; and
- the suspension on the basis of legal disability set out in section 18(3) is however subject to a long stop of three years, as set out in article 16(3) of the Athens Convention.
In the circumstances the court agreed with the Inner House that the pursuer's claim as a guardian on behalf of her son was not time barred and dismissed the appeal.
This is, of course, unlikely to be the end of the matter as there has not yet been any determination of the facts of the case and whether there was any negligence on the part of the defender. Unless a settlement is reached between the parties, further procedure before the Court of Session will be necessary to achieve a decision as to whether the defender is liable for any damages in respect of the claim on behalf of the deceased's son.