K v The Marist Brothers & Anor [2017] ScotCS CSIH_2 (12 January 2017)

K v The Marist Brothers & Anor [2017] ScotCS CSIH_2 (12 January 2017)

The pursuer's belief did not amount to unsoundness of mind creating a legal disability; no expert evidence supported incapacity. The Lord Ordinary correctly found the claim time-barred and refused to exercise discretion under section 19A due to severe prejudice to respondents. The prescription issue was academic given the limitation finding.

Citation
[2017] ScotCS CSIH_2
Parties
Pursuer and Reclaimer: K; Defender and Respondent: The Marist Brothers; Defender and Respondent: Brother Ronald McEwan
Jurisdiction
Scotland
Judgment Date
12 January 2017
Procedural Posture
Appeal / Judgment on Preliminary Proof Regarding Prescription and Limitation
Outcome
appeal refused
Legal Topics
Negative Prescription, Time Bar, Legal Disability, Section 17(3) Prescription and Limitation Act 1973, Section 19 a Prescription and Limitation Act 1973
Civil Litigation Personal Injury Limitation Law Negative Prescription Time Bar Legal Disability Section 17(3) Prescription and Limitation Act 1973 Section 19 a Prescription and Limitation Act 1973

Case Brief

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Parties

K

Pursuer and Reclaimer

The Marist Brothers

Defender and Respondent

Brother Ronald McEwan

Defender and Respondent

Procedural Posture

Appeal / Judgment on Preliminary Proof Regarding Prescription and Limitation

Legal Issues

  1. 1 Whether the claim is extinguished by long negative prescription
  2. 2 Whether the pursuer was under legal disability by reason of unsoundness of mind within section 17(3)
  3. 3 Whether discretion under section 19A should be exercised to allow the claim out of time

Ratio Decidendi

The pursuer's belief did not amount to unsoundness of mind creating a legal disability; no expert evidence supported incapacity. The Lord Ordinary correctly found the claim time-barred and refused to exercise discretion under section 19A due to severe prejudice to respondents. The prescription issue was academic given the limitation finding.

Court Disposition

appeal refused

Orders

  • claim dismissed as time-barred
  • no exercise of discretion under section 19A