Ferguson & Ors v J & A Lawson (Joiners) Ltd [2013] ScotCS CSOH_146 (30 August 2013)

Ferguson & Ors v J & A Lawson (Joiners) Ltd [2013] ScotCS CSOH_146 (30 August 2013)

It is equitable to allow the pursuers to bring the action outwith the limitation period because the error in suing the wrong company did not prejudice the defenders' insurers, who are now in a better position than if decree in absence had been taken against the correct company within the triennium. The pursuers and their solicitors exercised due diligence, and the insurers' interests are not unfairly prejudiced.

Citation
[2013] ScotCS CSOH_146
Parties
Pursuers: Betty Sophia Smith Ferguson and Others; Defenders: J & A Lawson (Joiners) Limited
Jurisdiction
Scotland
Judgment Date
30 August 2013
Procedural Posture
Personal Injury Action for Damages (mesothelioma) / Preliminary Proof on Time Bar
Outcome
Court allows pursuers to bring the action outwith the limitation period under section 19A.
Legal Topics
Time Bar, Equitable Discretion, Professional Negligence, Employer Liability, Mesothelioma Claims
Personal Injury Limitation of Actions Prescription Time Bar Equitable Discretion Professional Negligence Employer Liability Mesothelioma Claims

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Parties

Betty Sophia Smith Ferguson and Others

Pursuers

J & A Lawson (Joiners) Limited

Defenders

Procedural Posture

Personal Injury Action for Damages (mesothelioma) / Preliminary Proof on Time Bar

Legal Issues

  1. 1 Whether the action for damages is time-barred under the Prescription and Limitation (Scotland) Act 1973
  2. 2 Whether the court should exercise its discretion under section 19A to allow the action to proceed outwith the limitation period

Ratio Decidendi

It is equitable to allow the pursuers to bring the action outwith the limitation period because the error in suing the wrong company did not prejudice the defenders' insurers, who are now in a better position than if decree in absence had been taken against the correct company within the triennium. The pursuers and their solicitors exercised due diligence, and the insurers' interests are not unfairly prejudiced.

Court Disposition

Court allows pursuers to bring the action outwith the limitation period under section 19A.

Orders

  • Action permitted to proceed despite time-bar.