Thomson v. Newy & Eyre Ltd & Ors [2005] ScotCS CSIH_21 (24 February 2005)

Thomson v. Newy & Eyre Ltd & Ors [2005] ScotCS CSIH_21 (24 February 2005)

The Lord Ordinary erred in treating the existence of a timeously raised economic loss claim as a neutral factor in the section 19A discretion. Since the defenders would have to address the economic loss claim on its merits regardless, the overlap with the personal injuries claim reduces the prejudice to the defenders. The matter requires a full proof before answer to clarify the factual circumstances relevant to the exercise of discretion under section 19A.

Citation
[2005] ScotCS CSIH_21
Parties
Pursuer and Reclaimer: James Thomson; Defenders and Respondents: Newey & Eyre Limited; First Third Party: Dibb Lupton Alsop; Second Third Party: Archibald Campbell & Harley, W. S.
Jurisdiction
Scotland
Judgment Date
24 February 2005
Procedural Posture
Reclaiming Motion (appeal) in Damages for Breach of Contract / Appeal From Lord Ordinary's Decision on Time Bar and Section 19 a Discretion
Outcome
Reclaiming motion allowed; Lord Ordinary's interlocutor recalled; proof before answer allowed at large.
Legal Topics
Breach of Contract, Damages, Personal Injury, Time Bar, Section 17 and 19 a Prescription and Limitation (scotland) Act 1973, Sequestration
Contract Law Civil Procedure Limitation of Actions Breach of Contract Damages Personal Injury Time Bar Section 17 and 19 a Prescription and Limitation (scotland) Act 1973 +1 more

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Parties

James Thomson

Pursuer and Reclaimer

Newey & Eyre Limited

Defenders and Respondents

Dibb Lupton Alsop

First Third Party

Archibald Campbell & Harley, W. S.

Second Third Party

Procedural Posture

Reclaiming Motion (appeal) in Damages for Breach of Contract / Appeal From Lord Ordinary's Decision on Time Bar and Section 19 a Discretion

Legal Issues

  1. 1 Whether the claim for damages for personal injuries is time-barred under section 17 of the Prescription and Limitation (Scotland) Act 1973
  2. 2 Whether it is equitable under section 19A of the 1973 Act to allow the personal injuries claim to proceed despite being time-barred

Ratio Decidendi

The Lord Ordinary erred in treating the existence of a timeously raised economic loss claim as a neutral factor in the section 19A discretion. Since the defenders would have to address the economic loss claim on its merits regardless, the overlap with the personal injuries claim reduces the prejudice to the defenders. The matter requires a full proof before answer to clarify the factual circumstances relevant to the exercise of discretion under section 19A.

Court Disposition

Reclaiming motion allowed; Lord Ordinary's interlocutor recalled; proof before answer allowed at large.

Orders

  • Allow the reclaiming motion.
  • Recall the Lord Ordinary's interlocutor of 2 July 2004.