Kelly & Ors v. Stoddart Sekers International Plc [2004] ScotCS 258 (02 December 2004)

Kelly & Ors v. Stoddart Sekers International Plc [2004] ScotCS 258 (02 December 2004)

The responsibility for the action not being raised in time rests with the pursuers as responsible for their solicitors. The pursuers have an alternative remedy against the solicitors. The only prejudice to the defenders if the action proceeds is loss of statutory defence. It is not equitable to allow the action out of time under Section 19A.

Citation
[2004] ScotCS 258
Parties
Pursuers: Anne Frances Izzard Kelly and Others; Defenders: Stoddart Sekers International Plc
Jurisdiction
Scotland
Judgment Date
02 December 2004
Procedural Posture
Personal Injury / Reparation (asbestos Exposure) / Preliminary Proof on Time Bar (section 19 A, Prescription and Limitation (scotland) Act 1973)
Outcome
Action dismissed as time-barred; Section 19A discretion not exercised.
Legal Topics
Asbestos Exposure, Time Bar, Section 19 a Discretion, Professional Negligence of Solicitors
Personal Injury Limitation of Actions Professional Negligence Asbestos Exposure Time Bar Section 19 a Discretion Professional Negligence of Solicitors

Case Brief

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Parties

Anne Frances Izzard Kelly and Others

Pursuers

Stoddart Sekers International Plc

Defenders

Procedural Posture

Personal Injury / Reparation (asbestos Exposure) / Preliminary Proof on Time Bar (section 19 A, Prescription and Limitation (scotland) Act 1973)

Legal Issues

  1. 1 Whether it is equitable to allow the pursuers to bring the action out of time under Section 19A of the Prescription and Limitation (Scotland) Act 1973
  2. 2 Whether the pursuers are responsible for the failure of their solicitors to raise the action timeously
  3. 3 Whether the existence of an alternative remedy against the solicitors precludes the exercise of discretion under Section 19A

Ratio Decidendi

The responsibility for the action not being raised in time rests with the pursuers as responsible for their solicitors. The pursuers have an alternative remedy against the solicitors. The only prejudice to the defenders if the action proceeds is loss of statutory defence. It is not equitable to allow the action out of time under Section 19A.

Court Disposition

Action dismissed as time-barred; Section 19A discretion not exercised.

Orders

  • Repel the third plea-in-law for the pursuers
  • Sustain the first and second pleas-in-law for the defenders