McClelland v. Stuart Building Services & Ors [2004] ScotCS 200 (06 August 2004)

McClelland v. Stuart Building Services & Ors [2004] ScotCS 200 (06 August 2004)

The temporary judge misdirected himself by overemphasising conduct of pursuer and solicitor, failing to consider lack of prejudice to defenders, and not addressing prospects of a claim against solicitors. The distinction between the limited company and partnership was highly technical and did not prejudice the defenders. The pursuer is entitled to an enquiry regarding section 19A discretion.

Citation
[2004] ScotCS 200
Parties
Pursuer & Reclaimer: David McClelland; Defenders & Respondents: Stuart Building Services, Alexander Stuart, Freda Thomson Stuart
Jurisdiction
Scotland
Judgment Date
06 August 2004
Procedural Posture
Reclaiming Motion (appeal) / Post Interlocutor, Inner House Review
Outcome
Interlocutor of temporary judge recalled; case put out By Order for parties to address whether proof is necessary or discretion should be exercised to allow action to proceed.
Legal Topics
Time Bar, Section 19 a Prescription and Limitation (scotland) Act 1973, Substitution of Parties, Professional Negligence
Personal Injury Civil Procedure Limitation of Actions Time Bar Section 19 a Prescription and Limitation (scotland) Act 1973 Substitution of Parties Professional Negligence

Case Brief

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Parties

David McClelland

Pursuer & Reclaimer

Stuart Building Services, Alexander Stuart, Freda Thomson Stuart

Defenders & Respondents

Procedural Posture

Reclaiming Motion (appeal) / Post Interlocutor, Inner House Review

Legal Issues

  1. 1 Whether the action was time-barred under limitation statutes
  2. 2 Whether discretion under section 19A should be exercised to allow the action to proceed
  3. 3 Whether pursuer's solicitor's conduct constituted professional negligence

Ratio Decidendi

The temporary judge misdirected himself by overemphasising conduct of pursuer and solicitor, failing to consider lack of prejudice to defenders, and not addressing prospects of a claim against solicitors. The distinction between the limited company and partnership was highly technical and did not prejudice the defenders. The pursuer is entitled to an enquiry regarding section 19A discretion.

Court Disposition

Interlocutor of temporary judge recalled; case put out By Order for parties to address whether proof is necessary or discretion should be exercised to allow action to proceed.

Orders

  • Recall of interlocutor dismissing action as time-barred
  • Case put out By Order for further submissions on necessity of proof