Kane v Argyll & Clyde Health Board [1998] ScotCS 74 (24 November 1998)

Kane v Argyll & Clyde Health Board [1998] ScotCS 74 (24 November 1998)

The pursuer failed to provide a reasonable explanation for the delay in raising the action, and the defenders would suffer material prejudice in the conduct of their defence due to loss of records and witness memory. The exercise of discretion by Lady Cosgrove to refuse the application under section 19A was justified and not open to appellate interference.

Citation
[1998] ScotCS 74
Parties
Pursuer and Reclaimer: Mrs. Rose Kane (A. P.); Defenders and Respondents: Argyll and Clyde Health Board
Jurisdiction
Scotland
Judgment Date
24 November 1998
Procedural Posture
Reclaiming Motion (appeal) in Civil Action / Appeal From Outer House Decision on Preliminary Proof Regarding Section 19 a Discretion
Outcome
Reclaiming motion refused; interlocutor of 24 January 1997 upheld; action remains dismissed as time-barred.
Legal Topics
Time Bar, Section 19 a Prescription and Limitation (scotland) Act 1973, Equitable Discretion to Allow Time Barred Actions, Vicarious Liability, Consent to Medical Treatment
Medical Negligence Limitation of Actions Civil Procedure Time Bar Section 19 a Prescription and Limitation (scotland) Act 1973 Equitable Discretion to Allow Time Barred Actions Vicarious Liability Consent to Medical Treatment

Case Brief

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Parties

Mrs. Rose Kane (A. P.)

Pursuer and Reclaimer

Argyll and Clyde Health Board

Defenders and Respondents

Procedural Posture

Reclaiming Motion (appeal) in Civil Action / Appeal From Outer House Decision on Preliminary Proof Regarding Section 19 a Discretion

Legal Issues

  1. 1 Whether the court should exercise its discretion under section 19A of the Prescription and Limitation (Scotland) Act 1973 to allow a time-barred action to proceed
  2. 2 Whether the pursuer provided a reasonable explanation for the delay in raising the action
  3. 3 Whether the defenders would suffer material prejudice if the action were allowed to proceed

Ratio Decidendi

The pursuer failed to provide a reasonable explanation for the delay in raising the action, and the defenders would suffer material prejudice in the conduct of their defence due to loss of records and witness memory. The exercise of discretion by Lady Cosgrove to refuse the application under section 19A was justified and not open to appellate interference.

Court Disposition

Reclaiming motion refused; interlocutor of 24 January 1997 upheld; action remains dismissed as time-barred.

Orders

  • Refusal of reclaiming motion
  • Upholding of Lady Cosgrove's interlocutor dismissing the action