CATRIONA PEAT AND DAVID KERR EXECUTORS OVER THE ESTATE OF THE LATE MARGARET GILFILLAN COLQUHOUN PEAT AGAINST ASSEMBLY THEATRE Ltd [2014] ScotCS CSOH_144 (25 September 2014)

CATRIONA PEAT AND DAVID KERR EXECUTORS OVER THE ESTATE OF THE LATE MARGARET GILFILLAN COLQUHOUN PEAT AGAINST ASSEMBLY THEATRE Ltd [2014] ScotCS CSOH_144 (25 September 2014)

It is equitable to allow the pursuers to bring the present action out of time because the prospects of success in an alternative remedy against their solicitors are neither good nor reasonable, the only substantial prejudice to the defenders is loss of the time-bar defence, and the equities favour the pursuers.

Citation
[2014] ScotCS CSOH_144
Parties
Pursuer: Catriona Peat; Pursuer: David Kerr; Defender: Assembly Theatre Limited
Jurisdiction
Scotland
Judgment Date
25 September 2014
Procedural Posture
Personal Injury / Application for Leave to Bring Action Out of Time Under Section 19 a Prescription and Limitation (scotland) Act 1973
Outcome
Leave granted to bring action out of time under section 19A Prescription and Limitation (Scotland) Act 1973.
Legal Topics
Limitation of Actions, Equitable Discretion, Alternative Remedy, Executor Liability
Personal Injury Civil Procedure Limitation of Actions Equitable Discretion Alternative Remedy Executor Liability

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Parties

Catriona Peat

Pursuer

David Kerr

Pursuer

Assembly Theatre Limited

Defender

Procedural Posture

Personal Injury / Application for Leave to Bring Action Out of Time Under Section 19 a Prescription and Limitation (scotland) Act 1973

Legal Issues

  1. 1 Should the court exercise its discretion under section 19A of the Prescription and Limitation (Scotland) Act 1973 to allow the action to proceed out of time?
  2. 2 Do the pursuers have a satisfactory alternative remedy against their solicitors?
  3. 3 Was there prejudice to the defenders due to the deceased's unavailability as a witness?

Ratio Decidendi

It is equitable to allow the pursuers to bring the present action out of time because the prospects of success in an alternative remedy against their solicitors are neither good nor reasonable, the only substantial prejudice to the defenders is loss of the time-bar defence, and the equities favour the pursuers.

Court Disposition

Leave granted to bring action out of time under section 19A Prescription and Limitation (Scotland) Act 1973.

Orders

  • Action allowed to proceed out of time.
  • Questions of expenses reserved.