Hill v McAlpine [2004] ScotCS 113 (13 May 2004)

Hill v McAlpine [2004] ScotCS 113 (13 May 2004)

The court exercised its discretion under s.19A to allow the pursuer's claim for physical injury to proceed, finding that the delay was due to her solicitor's negligence, not her own fault, the mistake was quickly rectified, the defender was not prejudiced, and it would be harsh and inefficient to force the pursuer to raise a separate action against her solicitor.

Citation
[2004] ScotCS 113
Parties
Pursuer: Julia Hill; Defender: Fiona McAlpine
Jurisdiction
Scotland
Judgment Date
13 May 2004
Procedural Posture
Personal Injury Reparation Action / Procedure Roll Debate on Limitation and Discretion Under S.19 a of the Prescription and Limitation (scotland) Act 1973
Outcome
Pursuer's third plea-in-law sustained; defender's first plea-in-law repelled; proof before answer allowed.
Legal Topics
Limitation of Actions, Prescription, Discretion Under S.19 a, Negligence of Solicitor, Road Traffic Accident
Personal Injury Civil Procedure Limitation of Actions Prescription Discretion Under S.19 a Negligence of Solicitor Road Traffic Accident

Case Brief

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Parties

Julia Hill

Pursuer

Fiona McAlpine

Defender

Procedural Posture

Personal Injury Reparation Action / Procedure Roll Debate on Limitation and Discretion Under S.19 a of the Prescription and Limitation (scotland) Act 1973

Legal Issues

  1. 1 Whether the pursuer's claim for physical injury is time-barred under s.17 of the Prescription and Limitation (Scotland) Act 1973
  2. 2 Whether the court should exercise its discretion under s.19A to allow the time-barred claim to proceed

Ratio Decidendi

The court exercised its discretion under s.19A to allow the pursuer's claim for physical injury to proceed, finding that the delay was due to her solicitor's negligence, not her own fault, the mistake was quickly rectified, the defender was not prejudiced, and it would be harsh and inefficient to force the pursuer to raise a separate action against her solicitor.

Court Disposition

Pursuer's third plea-in-law sustained; defender's first plea-in-law repelled; proof before answer allowed.

Orders

  • Sustain the third plea-in-law for the pursuer
  • Repel the defender's first plea-in-law