RECLAIMING MOTION BY CAROLINE COWAN AGAINST LANARKSHIRE HOUSING ASSOCIATION LTD [2020] ScotCS CSIH_26 (21 May 2020)

RECLAIMING MOTION BY CAROLINE COWAN AGAINST LANARKSHIRE HOUSING ASSOCIATION LTD [2020] ScotCS CSIH_26 (21 May 2020)

The proposed amendment did not fundamentally alter the pursuer’s case but merely expanded upon the original claim, which was always based on breach of statutory duty under the Housing (Scotland) Act 2001; therefore, there was no issue of limitation under section 17 of the 1973 Act, and the Lord Ordinary erred in refusing the amendment and dismissing the action at an early procedural stage before the record had closed.

Citation
[2020] ScotCS CSIH_26
Parties
Pursuer and Reclaimer: Caroline Cowan; Defenders and Respondents: Lanarkshire Housing Association Ltd
Jurisdiction
Scotland
Judgment Date
21 May 2020
Procedural Posture
Reclaiming Motion (appeal) in Personal Injury Action / Appeal Against Refusal to Allow Amendment of Pleadings and Dismissal of Action at Early Procedural Stage
Outcome
Reclaiming motion allowed; interlocutors of 15 May 2019 recalled; amendment permitted; action reinstated.
Legal Topics
Amendment of Pleadings, Prescription and Limitation (scotland) Act 1973, Statutory Repairing Obligations, Procedural Fairness, Time Bar
Civil Procedure Housing Law Personal Injury Amendment of Pleadings Prescription and Limitation (scotland) Act 1973 Statutory Repairing Obligations Procedural Fairness Time Bar

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Parties

Caroline Cowan

Pursuer and Reclaimer

Lanarkshire Housing Association Ltd

Defenders and Respondents

Procedural Posture

Reclaiming Motion (appeal) in Personal Injury Action / Appeal Against Refusal to Allow Amendment of Pleadings and Dismissal of Action at Early Procedural Stage

Legal Issues

  1. 1 Whether the proposed amendment to the pleadings constituted a fundamental change in the pursuer’s case such as to deprive the defenders of the protection of the time bar under section 17(2) of the Prescription and Limitation (Scotland) Act 1973
  2. 2 Whether the Lord Ordinary erred in requiring amendment rather than adjustment when the record had not closed
  3. 3 Whether the Lord Ordinary erred in the exercise of discretion in refusing the amendment and dismissing the action

Ratio Decidendi

The proposed amendment did not fundamentally alter the pursuer’s case but merely expanded upon the original claim, which was always based on breach of statutory duty under the Housing (Scotland) Act 2001; therefore, there was no issue of limitation under section 17 of the 1973 Act, and the Lord Ordinary erred in refusing the amendment and dismissing the action at an early procedural stage before the record had closed.

Court Disposition

Reclaiming motion allowed; interlocutors of 15 May 2019 recalled; amendment permitted; action reinstated.

Orders

  • Minute of Amendment to be received and answers lodged within 28 days
  • Adjustment to follow thereafter in terms of RCS 24.2(3)(a)