Britannia Building Society v Clarke & Ors [2001] ScotCS 123 (25 May 2001)

Britannia Building Society v Clarke & Ors [2001] ScotCS 123 (25 May 2001)

The pursuers failed to make relevant averments explaining why, with reasonable diligence, they could not have discovered their claim earlier than 1996, given that they were aware of the losses and relevant circumstances by 1992. Therefore, their invocation of section 11(3) was irrelevant and the claim was prescribed.

Citation
[2001] ScotCS 123
Parties
Pursuer: Britannia Building Society; Defender: John Bernard Clarke and Others
Jurisdiction
Scotland
Judgment Date
25 May 2001
Procedural Posture
Civil Damages for Professional Negligence / Procedure Roll Debate on Relevancy and Prescription
Outcome
Action dismissed as prescribed
Legal Topics
Prescription, Reasonable Diligence, Professional Duty of Care
Professional Negligence Contract Law Limitation of Actions Prescription Reasonable Diligence Professional Duty of Care

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Parties

Britannia Building Society

Pursuer

John Bernard Clarke and Others

Defender

Procedural Posture

Civil Damages for Professional Negligence / Procedure Roll Debate on Relevancy and Prescription

Legal Issues

  1. 1 Whether the pursuers' claim for damages is extinguished by prescription under section 6 of the Prescription and Limitation (Scotland) Act 1973
  2. 2 Whether the pursuers have made relevant averments to invoke section 11(3) of the 1973 Act regarding lack of awareness and reasonable diligence

Ratio Decidendi

The pursuers failed to make relevant averments explaining why, with reasonable diligence, they could not have discovered their claim earlier than 1996, given that they were aware of the losses and relevant circumstances by 1992. Therefore, their invocation of section 11(3) was irrelevant and the claim was prescribed.

Court Disposition

Action dismissed as prescribed

Orders

  • Sustain defenders' second plea-in-law as to relevancy of section 11(3) averments
  • Exclude pursuers' section 11(3) averments from probation